
REPORTS OF OASES
ARGUED AND ADJUDGED
IN THE
SUPREME COURT
OK THE
UNITED STATES,
IN FEBRUARY TERM 1814/
By WILLIAM CRANCH,
CHIE? JUDGE OF THE CIRCUIT COURT OF THE DISTRICT OF COLUMBIA.
Potius ignoratio juris litigiosa est, quam scientia. CIC. DE LEGIBUS, DIAL. 1.
VOL. VIII.
THIRD EDITION.
EDITED, WITH NOTES AND REFERENCES TO LATER DECISIONS, BY FREDERICK C. BRIGHTLY, AUTHOR OF THE “FEDERAL DIGEST,” ETC.
NEW YORK:
BANKS & BROTHERS, LAW PUBLISHERS, No. 144 NASSAU STREET. ALBANY: 4 75 BROADWAY.
1883.
Entered according to Act of Congress, in the year 1883, By BANKS & BROTHERS,
In the office of the Librarian of Congress, at Washington.
JUDGES
•	OF THE
SUPREME COURT OF THÉ UNITED STATES, DUBING THE PEBIOD OF THESE REPOETS.
Hon. John Mabshall, Chief Justice.
“ Bushbod Washington,
“ William Johnson,
“ Beockholst Livingston,
“ Thomas Todd,
“ Gabbiel Duvall,
“ Joseph Stoey,
► Associate Justices.
Richaed Rush, Esquire, Attorney-General.
The commissions of the Honorable G. Duvall and the Honorable J. Stoey bear date November 18th, 1811.
Richaed Rush, Esq., was commissioned as Attorney-General, February 10th, 1814, in place of William Pinkney, Esq., resigned.
iii
A TABLE
OF THE
NAMES OF THE CASES REPORTED IN THIS VOLUME.
The references are to the Star *pages.
A ♦PAGE
Adventure, The.............. 221
Alexander v. Pendleton....... 462
Alexander, The.............  169
Aurora, The................. 203
B
Bags of Coffee, United States v. 398
Bank of Alexandria v. Herbert. 36
Bartlett, Price v........... 431
Beale v. Thompson............ 70
Beatty v. Burnes............. 98
Brown v. United States....... 110
Burnes, Beatty v............. 98
C
Carroll, Pratt v............... 471
Carter v. Cutting........... 251
Chesapeake Ins. Co., Marcar-dier v....................... 39
Clementson v. Williams....... 72
Common Council of Alexandria v. Preston................... 53
Craig, Vowles v.............. 376
Crowell v. McFadon........... 94
Cutting, Carter v............. 251
D
Dunham & Randolph’s Claim... 354
E
♦page
Edrington, Smith v............ 66
Euphrates, The................ 388
F
Frances, The, Dunham’s Claim. 354
Frances, The, French’s Claim.. 359
Frances, The, Gillespie’s Claim. 363
Frances, The, Graham’s Claim.. 349
Frances, The, Irvin’s Claim.... 418
Frances, The, Kennedy’s Claim. 359
Frances, The, Thompson’s Claim. 335
Frazier, Griffith v.............	9
Forrest, Van Ness v............ 30
•French’s Claim................ 359
G
Gibbons, The Thomas. ......... 421
Gillespie’s Claim............. 363
Gracie v. Marine Ins. Co...... 77
Gracie v. Maryland Ins. Co.... 84
Graham’s Claim................ 349
Green v. Liter................ 229
Griffith v. Frazier............. 9
Grotius, The.................. 456
H
Hall v. Leigh................   50
Harford v. United States...... 109
v.
vi
CASES REPORTED.
♦page
Herbert, Bank of Alexandria v. 36
Hiram, The................... 444
I Irvin’s Claim................ 418
J Joseph, The.................. 451
Julia, The................... 181
K Kennedy’s Claim............... 358
L Leigh, Hall v................. 50
Liter, Green v................ 229
M
McCall v. Marine Ins. Co......" 59
McFadon, Crowell v............ 94
Mareardier v. Chesapeake Ins. Co..............,............. 39
Marine Ins. Co., Gracie v.... 11
Marine Ins. Co., McCall v.... 59
Mars, The...................  417
Mary, The'................... 388
Maryland Ins. Co., Gracie v.... 84
Maryland Ins. Co., Pleasants v.. 55
Maryland Ins. Co., Richards v.. 84
Merrimack, The............... 317
P Pendleton, Alexander v....... 462
♦page
Pleasants v. Maryland Ins. Co.. 55
Pratt v. Carroll............  471
Preston, Alexandria v......... 53
Prince v. Bartlett........... 431
R
Rapid, The................... 155
Richards v. Maryland Ins. Co.. 84
S
Sally, The................... 382
Smith v. Edrington............ 66
St. Lawrence,. The...»........434
T
Thomas Gibbons, The.......... 421
Thompson’s Claim............. 335
Thompson, Beale v............. 70
U
United States v. Bags of Coffee. 398
United States, Brown v........ 110
United States, Harford v..... 109
V
Van. Ness v. Forrest.......... 30
Venus, The................... 253
Vowles v. Craig.............. 371
W
Williams, Clementson v ....... 72
A TABLE
OF THE
CASES CITED IN THIS VOLUME.
The references are to the Star * pages.
A
*PAGB
Abby, The.......................5 Rob. 254.......... 157,	186, 210, 395
Adams v. Woods..................2 Cr. 336......;...................   401
Adriana, The....................1 Rob. 263,	313.................... 261
Angelique, The..................3 Rob. 294	  ....................  157
Anthony Mangin, The.............3 Cr. 356............................ 415
Aquilla, The....................1 Rob. 37............................ 131
Attorney-General v. Freeman.....Hardr. 101..........................  415
Attorney-General v. Weeden......Parker 267........................... 143
Aurora, The.....................4 Rob. 181, 219..........325,	334, 356
B
Bain v. The Speedwell...........2 Dall. 40.........................   341
Barker v. Blakes................9 East 280....................... 61
Barwick’s Case..................5 Co. 94......................... 247
Bell’s Case.....................6 Rob. 132....................... 341
Bell v. Gilson..................1 Bos. & Pul. 355... .346,	391,	395,	439
Bernon, The.....................1 Rob. 86, 104.. .174,	258,	279,	345,	438
Betsey, The.....................1 Rob. 78, 93.................... 157
Betty Cathcart, The.............1 Rob. 184, 220...............391,	459
Bevil’s Case ...................4 Co. 8.............................. 239
Blackenhagen v. London Ass. Co... 1 Camp. 454........................  65
Boedes Lust, The................5 Rob. 207, 257......255,	284, 309, 339
Bonsmaker, Ex parte.............13 Ves.	jr. 71...................... 136
Bradford v. Patterson...........Hardin	162......................... 238
Bristow v. Towers,..............6 T. R.	45.......................... 136
Brown v. Quarles................Sneed 237............................ 258
Burnett v. Kensington...........7 T. R.	210......................... 43
vii
Vlii
CASES CITED.
C
♦page
Carl Walter, The................4 Rob. 170, 207................... 356
Carolina, The...................6 Rob. 337..................,..... 356
Cary v. Stephenson..............2 Salk. 421........................ 86
Cawer v. James .................Bull. N. P. 150.................... 89
Caze v. Baltimore Insurance Co.. .7 Cr. 358........................ 50
Charlotte, The................  4	Rob. 272 ....................   131
Charming Betsey, The............2 Cr. 98.................210,	263, 346
Chrinsurah, Capture of..........1	Dods. 179...................... 139
Citto, The......................3 Rob. 37, 38......171,	255-6, 258, 362
Clarissa, The...................5	Rob.	4......................... 209
Clay v. White...................1	Munf. 162 ..................... 236
Cockin v. Fraser................Marsh.	Ins.	144.................. 43
Columbia, The...................1 Rob.	130,	156................. 177
Comet, The......................Edw. Adm.	32................... 157
Concordia, The..................1 Rob.	100,	119................. 438
Constantia, The.................6	Rob.	321, 326............. 260,	325
Conveniencia, The...............4	Rob.	170, 205.................. 264
Coopman’s Case..................1	Rob,	12, 14...................  368
Copenhagen, The.................1	Rob.	245, 291............. 260,	356
Cornelis and Maria, The.........5	Rob.	28, 32............... 157,	259
Countess of Lauderdale, The.....4	Rob.	232, 283.................. 447
Curtissos’ Case.................5	Rob.	65 ; 3 Id. 25........ 256,	311
D
Danckebaar Africaan, The........1 Rob. 90, 107.................... 255
Dawson v. Godfrey...............4 Cr. 321......................... 365
Diana, The......................5 Rob. 60.......255,	256, 304, 346, 439
Dr. Drury’s Case................8 Co. 142.......................... 18
Dree Gebroeders, The............4 Rob. 193, 234. .171, 358, 346, 391, 395
Dyson v. Rowcroft...............3 Bos. & Pul. 474.................. 43
E
Earl v. Brown.......*...........1 Wils. 302.......................  18
Edwards, Ex parte...............10 Ves. jr. 104................... 401
Eenrom, The.....................2 Rob. 2, 3....................... 264
Elsebe, The............5 Rob. 170................................. 131
Elstob v. Thorowgood........... .1 Ld. Raym. 283................... 87
Escott’s Case...................1 Rob. 183...............158,	368, 439
Etrusco, The....................4	Rob.	262,	n..................  132
Experiment, The.................2	Dall.	42....................... 255
F
Fisher v. Blight................2	Cr. 358........................ 165
Fladoyen, The...................1	Rob.	114,	135................. 226
Ford v. Travis..................2 Brev. (S. C.) 299............14,	26.
Fortuna, The. ............. 1 Rob. 178,. 212....................   157
CASES CITED.	ix
♦PAGB
Foster v. Allanson..............2 T. R. 479.......................... 33
Foxley’s Case...................5 Co. 109........................... 410
Fox v. White....................MS...............v.................. 233
Franklin, The...................3 Bos. & Pul.	207, n................ 255
Frederick Molke, The............1 Rob. 72, 86.....................   460
Furtado v. Rodgers..............3 Bos. & Pul.	191................. 143
G
Gertruyda, The..................2 Rob. 175...................131, 139
Gist v. Mason...................1 T. R. 84.........................  208
Glass v. Sloop Betsey...........3 Dall. 6....................137, 178
Graaf Bernstorf, The............3	Rob. 92, 109..................... 258
Grant v. Nailor.................4	Cr. 224........................... 33
Gregory’s Case..................5	Mod. 368......................... 324
H
Hadkinson v. Robinson...........3	Bos. & Pul. 392................... 64
Hales v. Petit..................Plowd. 253.................. 165,	410
Hallet v. Columbian Insurance Co.8 Johns. 272.......................  46
Hallet v. Jenks.................3 Cr. 210............... 158, 171, 178
Hamersly v. -------... ¥\.......3 Call 289........................ 68
Harmony, The....................2 Rob. 264, 322.	171, 255, 256, 258,	300
Herstelder, The.................1 Rob. 97, 115...................... 255
Henkle v. Royal Exch. Ins. Co... .1 Ves. 317..............   214,	216
Hoffnung, The...................2 Rob. 137, 165..................... 214
Hooe v. Groverman.......... ...	.1 Cr. 214.......................... 46
Hoop, The.......................1 Rob. 167, 200..... 157, 177, 209, 212,
213, 267, 346, 369, 438, 454
Hurry v. Royal Exchange Assurance Co.........................1 Marsh. 167, 254............ 78
I
Indian Chief, The...............3 Rob. 17, 12, 29,... .255, 267, 280, 300,
346, 349
Innis v. Crawford...............2 Bibb 412...................239,	241
Island of Trinidad, The.........5 Rob. 85........................... 139
J
Jackson v. Fairbanks............2	H. Bl. 340........................ 73
Jan Frederick, The..............5	Rob. 115, 128.................... 356
Jenks v. Hallet.................1	Caines 64,....................... 209
Jennings v. Carson..............4	Cr. 2...........................  137
Jones v. Ashurst................Skin. 357................... 407,	410
Jonge Klagsina, The.............5 Rob. 265, 270.........157, 302, 235
Jonge Jacobus Baumann, The.... 1 Rob. 204, 243.....................  179
Jonge Pieter, The...............4 Rob. 65, 79........195,	200, 213, 258
Josephine, The..................4 Rob. 21, 25...........324, -341, 356
X
CASES CITED.
♦page
Juffrow Catharine, The.........5	Rob. 141..................   157
Juffrow Margaretha, The........1	Rob. 181, n................. 395
K
Kennon v. McRoberts............1	Wash. 96..................... 68
Key v. Pearse..................2	Doug. 606..................  139
Kinsey v. Heyward..............1	Ld. Raym.	432................ 90
L
La Virginie....................5	Rob. 98..................... 257
Le Caux v. Eden................2 Doug. 606, 614............139, 438
Lindo v. Rodney................2 Doug. 613, n..............138, 139
Livingstonv. Maryland Ins.	Co...7 Cr. 506..................... 255
Locke v. United States..........7 Cr. 339..................... 110
Lockyer v. Offley..............1 T. R. 252.............400,	410, 413
Louisa Margaretha, The.........1 Bos. & Pul.	349.............. 157
M
McAndrews v. Vaughan...........Marsh. Ins. 150................. 43
Mcllvaine v. Coxe..............4 Cr. 211...................... 263
McIntire v. Browne.............1 Johns. 229.................... 46
Madonna delle Gracie, The......4 Rob. 161, 195.... 157,	267, 324, 340,
341, 346, 369, 391, 439
Magnus, The....................1	Rob. 27, 31................. 264
Maggrath v. Church.............1	Caines 212................... 48
Malden v. Bartlett.............Park Ins. 105.................. 131
Manning v. Newnham.............3	Doug. 130.................... 45
Maria Françoise, The...........6	Rob. 282.................... 131
Marianna, The..................6 Rob. 24.......... 340,	343, 394, 420
Marryat v. Wilson..............1 Bos. & Pul. 430.......... 366,	368
Matilda, The...................4	Hall’s L.	J. 478........... 210
Manning’s Case.................8	Co. 96...................... 18
Melomane, The..................5	Rob. 43...................  131
Mentor, The....................1 Rob. 154.............4....... 341
Mercurius, The.................1	Rob. 68,	81................ 166
Morrough v. Cornyns..........'.1	Wils. 211.................. 168
Murray v. The Charming Betsey. .2 Cr. 120..........*.......... 257
N
Nayade, The....................4 Rob.	206, 251............... 157
Nelly, The.....................1 Rob:	184, n................. 157
'Ncptunus, The.................1 Rob.	144.................... 157
O
Ober’s Adm’r v.................MS.............................. 12
Ocean, The.....................5 Rob.	84... 171, 258, 263, 310, 346, 439
CASES CITED.
xi
*PACE
Odin, The......................1 Rob. 208..................  157,	258
Oester Eems, The. .............1 Rob. 238, n. .................. 139
P
Packet De Bilboa, The........... .2 Rob. Ill, 133.. 340,	356, 395, 423
Pelly v. Royal Ex. Assurance Co. .1	Burr. 341.................... 77
Polly, The...................  .2	Rob. 296, 362.............   438
Portland, The...................3	Rob.	40, 41................. 258
Potts v. Bell...................8	T. R. 554. .158, 213, 216, 346, 395, 454
President, The..................5	Rob. 248 .................. 439
R
Rebeckah, The.................  1	Rob.	190, 227.. 131, 139, 144, 339, 460
Recovery, The...................6	Rob.	348.................. 157, 259
Rendsborg, The..................4	Rob.	98, 121..................198
Resler v. Sheehee...............1	Cr. 110.....................  233
Resolution, The.................6	Rob.	21..................... 176
Rex v. Wendman.................Cro. Jac. 82..................... 412
Rex v. Ward.................... 1	Lev.	8......................  411
Richardson v. Maine Ins. Co.....6	Mass.	118..................... 64
Richmond, The...................5	Rob.	325...................  131
Ringende Jacob, The.............1	Rob.	74, 89................. 157
Rising Sun, The.................2	Rob.	87, 104................. 438
Roberts v. Withered.;..........12	Mod. 92..............400,	402, 410
Roe v. Roe......................Hardr. 185....................   131
Romeo, The..................... 6	Rob. 351..................... 264
Rosalie and Betty, The..........2	Rob. 281, 243.............258,	264
Rose v. Himely..................4	Cr. 241.....................   12
Rucker v. London Assurance Co.. 1 Marsh. Ins.	166................ 78
Russel v. Russel...............1	Bro. C. C.	269...............  36
S
Santa Cruz, The................1	Rob. 42...................   157
Sarah, The .....................3	Rob. 268 .................... 341
Sheehy v. Mandeville............6	Cr. 253...................32,	35
Shermer v. Shermer.............1	Wash. 266...................   68
Simms v. Slacum................3	Cr. 306....................    17
Smith v. Ludlow................6	Johns. 267 ................... 73
Sparrow v. Caruthers...........2	Str. 1236....................  78
Speed v. Buford................3	Bibb 57...................... 240
Spencer’s Case.................6	Co. 10........................ 86
Sprigs v. Griffith.............MS............................... 240
Stella Del Norte, The..........5	Rob. 311.................     139
St. Philip’s Case..............8	T. R. 556.................... 157
Susa, The......................2 Rob. 212, 257...............258,	264
T
Talbot v. Jansen...............3 Dall. 133 ..................137,	257
Taylor v. Wheeler...............2	Vern. 564...................36	37
CASES CITED.	xü
♦page
Taynton v. Hannay..............3 Bos. & Pul. 26................ 12
Thorshaven, The................Edw. Adm. 102...............131,	139
Tierney v. Etherington........	1	Burr. 348... -............... 78
Tisson v. Clark................3	Wils. 449................... 239
Tobago, The....................5 Rob. 196 .............343,	394, 420
Twee Gesuster, The.............2	Rob. 234.................... 131
Two Friends, The. .*...........1	Rob. 2*8...................  139
U
United States v. Grundy........3 Cr. 356....................   401
V
Vallejo v. Wheeler.............Cowp. 143...................     44
Venus, The.....................4 Rob. 289..................... 157
Vigilantia, The................1 Rob. 11, 13.......212,	255, 258, 299
368, 422, 439
Vreede Scholty, The............5 Rob. 5.................,..... 198
Vrow Elizabeth, The............5 Rob. 2 ...............198,	209, 393
Vrow Judith, The,..............1 Rob. 126, 150................ 157
Vrow Margaretha, The...........1 Rob. 283, 336.............356,	395
W
Walker v. Wallaston............2 P. Wms. 576,.................. 14
Walsingham Packet, The.........2 Rob. 64, 77.......132,	151, 212, 259
Waples v. Eames................2 Str. 1243..................... 77
Ware v. Hylton.................3 Dall. 281.................112,	143
Whitcomb v. Whiting........... .2 Doug. 651.................... 73
Whitehill’s Case...............5 Rob. 58, 62.......286,	313, 369, 370
Wilkins v. Despard.............5 T. R. 112..............   400,	411
William and Mary, The..........4 Rob. 312, 386................ 176
Wilson v. Smith................3 Burr. 1550 ..................  42
Wise v. Withers................3 Cr. 331......................  12
Wright v. Hunter...............1 East 20......................  33
Y
Yeaton v. United States........5 Cr. 281...................... 401
Young v. Craig.................2 Bibb 270..................... 374
CASES DETERMINED
IN THE
SUPREME COURT OF THE UNITED STATES.
FEBRUARY TERM, 1814.
Griffith v. Frazier. (a)
Administration.— Void judgment.
So long as a qualified executor is capable of exercising the authority with which he has been invested by the testator, that authority cannot be conferred, either with or without limitation, by the court of ordinary, on any other person. And if, during such capability of the executor, the ordinary grant administration, either absolute or temporary, to another person, that grant is absolutely void.1
If a judgment be rendered against one, as executor, who is not executor, it does not bind the estate of the testator; and an execution upon such a judgment cannot legally be levied upon such estate.
By the law of South Carolina, administration durante absentia executoris, cannot be granted, after probate of the will and letters testamentary granted.
The acts of a tribunal, upon a subject not within its jurisdiction, are void.2
By the law of South Carolina, the thirty day rule is substituted for scire facias on a judgment,, in those cases only, where lapse of time prevents the plaintiff from suing out execution.
Error to the Circuit Court for the South Carolina district. This was an action of trespass quare clausum fTegit, brought by the plaintiff in the circuit court (who was also plaintiff in error), to recover a tract of land„ lying in the district of South Carolina, and in the possession of the defendant, to which the plaintiff asserted a title derived from a certain Joseph Salvadore.
Both parties admitted, that Salvadore was legally seised of an estate in fee, in the land in dispute. It appeared further, that Salvadore had executed several bonds, in favor of a certain Daniel Bordeaux; that Bordeaux brought an action against Salvadore on these bonds, and obtained thereon a judgment by default, which was entered up and signed, on the 30th of August 1786 ; that no further steps were taken in the cause, until the 2d of January 1787, when an execution issued thereon, and was lodged in the
(a) February 9th, 1814, Present, all the judges.
1 s. p. Kane v. Paul, 14 Pet. 83.
8 Cranch—1
2 Elliott v. Piersol, 1 Pet. 329.
1
9
SUPREME COURT
Griffith v. Frazier.
[Feb’y
sheriff’s office on the same day; that Salvadore departed this life on the 29th of December immediately preceding. Salvadore left a will and two or or three codicils, by which he appointed his three daughters, a certain William Stevens, and a certain Joseph Dacosta, his executors. All these persons were absent, out of the state, excepting Dacosta, who proved the will and codicils, and regularly qualified as executor thereto, on the 5th of January 1787 : he continued to reside in the city of Charleston, South Carolina, until some time in the year 1789, when he went to Savannah, in the
, state of Georgia, where he continued to reside *until November J 1790.
On the second day of October 1790, one James Lamotte, requested and obtained from the ordinary of Charleston, a citation, in behalf of the principal creditor of Salvadore, who was Bordeaux, to show cause why letters •of administration with the will annexed, should not be granted to him. On the return of the citation, no cause being shown to the contrary, the ordinary did, on the 8th of October 1790, grant general letters.of administration with the will annexed, on the estate of Salvadore, to Lamotte. A •«certificate was also obtained from the ordinary, by which it appeared, that it was the custom of the ordinary court to grant letters of administration durante absentia of the executor.
Bordeaux, on the 27th January 1791, obtained a rule from the court of common pleas, against Lamotte, as administrator of Salvadore, to show • cause, within thirty days, why the judgment obtained against Salvadore, as .aforesaid, should not be revived, and an execution issue thereon. This rule was made absolute on the 15th of March 1791, “subject to future argument.” On the 16th of April following (no further argument or proceeding having been had on the said rule, and no court intervening in the meantime), an execution issued on said judgment, against Lamotte, administrator, &c.; was lodged in the sheriff’s office, and levied upon the land in question, by the sheriff, on the 11th of May 1791. The land was sold at public outcry to the highest bidder, on the 6th of June 1791, and by a deed of the same date, was conveyed by the sheriff to Peter Freneau, the purchaser. On the 16th of July 1796, a decree was rendered in the suit, Pierce Butler v. Daniel Bordeaux and Peter Freneau, directing the said Peter to convey to such person as Pierce Butler should appoint. In pursuance of this decree, Peter Freneau conveyed to Samuel Jackson, under whom Griffith, the plaintiff in this case, claimed by regular conveyances. Frazier, the defendant, represented the heirs of Salvadore.
On the motion of the defendant, the circuit court instructed the jury, that the letters of administration granted to James Lamotte were totally void ; that, therefore, the judgment of Bordeaux was not revived against the estate of Salvadore ; that the sale and conveyance by the sheriff passed , no title to the purchaser ; and that *the evidence was not sufficient -* to maintain the plaintiff’s action. The jury found a verdict for the defendant, and judgment was rendered in his favor. The plaintiff excepted to the opinion of the court, and sued out a writ of error to the judgment.
Harper, for the plaintiff in error, after stating the facts of the case, contended, 1st. That the letters of administration, being durante absentia of the executor, were lawfully and properly granted by the ordinary to James 2
1814]	OF THE UNITED STATES.	11
Griffith v. Frazier.
Lainotte. 2d. That the question whether the granting of these letters were legal or not, was a question proper for the decision of the court of ordinary ; and that the judgment of that tribunal was conclusive, until reversed on appeal to the state court, having competent jurisdiction : that consequently, . the sale, in the present case, was valid, and the plaintiff’s title good.
Jones, contra.—1. The grant of administration durante absentia was absolutely void : which being the case, it is clear, that the subsequent sale of the property in question by the sheriff was illegal and invalid. Dacosta, the executor, had duly qualified ; and the circumstance of his having absented himself from the state of South Carolina, for the space of twelve months, is a matter of no importance, unless, at the same time, he was incapable of performing his duty as executor. But this does not appear to have been the fact. The ordinary, therefore, had no right to grant letters of administration to Lamotte.
As to the certificate, said to have been given by the ordinary, stating that it was the custom of the ordinary court to grant administration durante absentia of an executor, it would be shown, on the part of the defendant, that in every case which could be produced in support of that custom, the executor had not qualified.
The jurisdiction of the ordinary relative to the appointment *of [-* Q an administrator, is determined by the act of the testator in appoint- •-ing an executor. The administrator derives all his rights from the court of ordinary, and nothing from the will. 1 Com. Dig. 340 ; 1 Salk. 302 ; Toller on Executors, 76, 98 ; 2 Bac. Abr. 381, 386, 401 ; 2 Plowd. 271. The grant of letters of administration has, in some cases, been decided to be void, even after the refusal of the executor to take upon himself the execution of the will. 2 Bac. Abr. 386 ; Went. 145. The ordinary, in granting administration, is a ministerial, not a judicial officer. Toller 50, 66 ; Jac. Law Diet. tit. Executor; 12 Mod. 437.
In the case under consideration, the executor had proved the will; and it did not appear to the ordinary, that there were any goods and chattels unadministered. If this were the fact, the ordinary had no jurisdiction in the case.. 2 Bac. Abr. 385 ; Griffith’s collection of South Carolina laws, p. 35, 492 ; Ober’s administrator n.--------, MS. report of a case decided in
South Carolina. By the statute of 38 Geo. III., c. 87, to remedy the defect of the law in not giving to the ordinary the power of appointing an administrator durante absentia of an executor who had proved the will, it was evident, that, previous to that statute, the ordinary possessed no such power. That statute was so explained in the case of Taynton v. Hannay, 3 Bos. & Pul. 26 ; Toller, 104. When the executor had taken upon himself the trust of executing the will, the goods were out of the jurisdiction of the ordinary. Went. 39 ; 4 Burn’s Eccl. Law.
If the jurisdiction of the ordinary ceased upon the qualification of the executor, all his subsequent acts in relation to the business, were void. 3 T. R. 130 ; Toller 128. The supreme court of the United States has decided this principle, in cases analogous to the present. Hose y. Himely, 4 Cr. 241 ; Wise v. Withers, 3 Ibid. 331. Where a court has no jurisdiction in regard to a particular subject, trespass will lie against a sheriff for executing its orders relative thereto.
3
*13
SUPREME COURT
Griffith v. Frazier.
[Feb’y
*2. Admitting the administration granted to Laraotte to have been rightful, yet the execution against him, under which the land in question was sold, was absolutely vpid ; because the thirty day rule, under which the plaintiff attempted to revive the judgment in this case, was admissible only where the judgment had expired by lapse of time merely ; but was not competent to revive a suit or a judgment against the representative of a dead party, which could only be done by scire facias ; and no scire facias having issued in this case, to make Lamotte a party, the execution against him was absolutely void, for want of a judgment whereon to ground it. Griffith’s collection of S. Carolina Laws, 466-7, § 7.
Pinkney, Attorney-General, on the same side.—The principal, if not the only, point in controversy is, whether the court of ordinary had jurisdiction in the case now under consideration.
The ordinary, in receiving probate of a will, acts ministerially ; and when the will is proved, he is functus officio. The authority of the executor is derived from the will. The only power of the ordinary is to ascertain the existence of the will. If administration be granted, upon the supposition that no will exists, and a will afterwards appear, all the proceedings under the administration are void—the administration is a mere nullity. Toller 120-21. If there be a will, administration cannot be granted, until the executor has refused or neglected to appear on summons. Toller 93. If administration be granted durante absentia of the executor, it becomes void, upon the return of the executor and probate of the will. After probate, the ordinary has no further jurisdiction.
The reason of the thing is obvious. The will vests the testator’s property in the executor : he has a right, after probate, to appoint an attorney. But according to the doctrine contended for by the plaintiff, the ordinary *1j-i *may also appoint an attorney in the place of the executor. This
•* would be a manifest inconsistency. The executor, after accepting the trust, is bound to administer, and is liable for the goods intrusted to him. See MS. report of the case of Ford v. Travis, in the Court of Appeals of South Carolina, (a) in which the court decided unanimously, that after probate of a will, the grant of administration is void, although the executor is absent.
Harper, in reply.—If this case is against the plaintiff in error, it is a case of sheer law against justice. The plaintiff in error is a fair bonâ fide, purchaser, without notice, under the sanction of the decrees of the courts of the state where the land lies.
The principle contended for by the defendant, is only true as to the general disposition of the estate. It does not apply to the temporary interference of the ordinary in particular cases, the peculiar circumstances of which render such interference necessary ; such as cases of administration durante minori ætate, ad colligenda bona, &c. In the case of Ford v. Travis, cited by the counsel on the opposite side, the ordinary had granted unlimited administration for all purposes and for ever ; but in the case now before the court, the grant of administration is special and temporary, as
(a) 2 Brevard 299.
4
1814]	OF THE UNITED STATES.	14
< Griffith V. Frazier,
appears by the recital in the letters themselves. The grant of these letters was nothing more than the appointment of a curator. In England, the ordinary has a general power to issue letters of administration durante absentia. The statutes of Edw. III. and Hen. VIII., it is true, did not give a direct authority to grant administration in any case where there was an executor ; but a practice grew out of the equity of those statutes, to grant temporary administration, during the inability of ‘ the executor to act ; as pendente lite, mi-nori œtate, executor insane, &c. Walker n. Wollaston, 2 P. Wms. 576.
The general power of the ordinary to grant administration *ceases on the probate of a will in which an executor is named ; but not in ■-his power over the estate for special temporary purposes. The case in P. Wms., just cited, in which case probate had been granted, states the reasons for this temporary interference. The reason for granting administration durante absentia is the same as for granting it durante minon œtate. The degree of the necessity makes no difference : it is sufficient, that there is a necessity. It is said, that the executor may appoint an attorney. True, but suppose he does not—suppose that, without so doing, he abandons the estate and leaves the country. Would not this be a case for the interference of the ordinary in the temporary appoinment of an administrator ? The only inference that can be drawn from the statute of Geo. III., c. 87, which has been cited on the other side, is, that the power of the ordinary to grant administration in such cases was doubted ; not that it did not exist : and so is the case in 3 Bos. & Pul. 26, to be understood. The statute of George III. is only declaratory of the common law ; it does not enact a new law.
Such, then, is the doctrine in England on this subject. In South Carolina, it is the same. Until the year 1712, there is no trace of the existence of ordinaries in South Carolina. In that year, an act was passed declaring the statutes of 13 Edw. I., and 31 Edw. III., c. 11, to be in force in that colony, and enacting that the powers mentioned in those acts as belonging to the ordinary in England, shall be exercised by the same kind of officer in South Carolina. The act of 1744, directing the manner of returning inventories, speaks of ordinaries as then existing. The act of 1789, directing the manner of granting probate and administration, gives that power to the county courts, in those counties where such courts were established, and, in the other counties, leaves it to the ordinaries. The statute of Hen. VIII. is not in force in South Carolina ; the common law is.
*The doctrine, therefore, relative to the subject under considéra-tion is the same in South Carolina as in England ; and the power of L the ordinary is the same.
That it has been the practice of the ordinary court to grant administration durante absentia, the defendant does not deny, but urges that it has never, until the present case, been granted after probate by the executor. Perhaps not ; but the reason is, that no such case has before occurred. If it had, there is no doubt, that the ordinary court would have granted administration as it has now done. The courts of the same description in England would have done the same. If they had not, the legislature would have interfered.
2.	The judgment of the ordinary is conclusive that he acted judicially, and upon a subject properly cognisable by his court. Therefore, even admitting that he erred in granting the letters of administration to Lamotte,
5
16	SUPREME COURT	[Feb’y
Griffith v. Frazier.
yet Lamotte was administrator de facto, and his acts bound the estate of Salvadore, until those letters should be revoked. That the subject was one properly cognisable by the ordinary, cannot be denied. He had jurisdiction, under the equity of the statutes already cited, to grant temporary administration. He had jurisdiction to ascertain whether or not there was a will of personal property ; and no prohibition would lie to his proceedings. In a contest between two persons of the same name, both claiming to be executor, he might decide which of the two was entitled to administer the estate. He was competent to put such a construction upon the statutes as he might think correct, and to ascertain his powers growing out of the equity of those statutes. His judgment, therefore, in the present case, unless reversed on appeal to the court of common pleas of South Carolina, was conclusive in every other court where it might come incidentally in question. Yet this court is now called upon not only to declare the judgment of the ordinary void, and to reverse the same, but to reverse also that of the appellate‘court by which his judgment has been confirmed.
h-i 3.' The judgment on which the execution in this case *issued, was J properly revived by a court of competent jurisdiction, and its judgment can be questioned only in an appellate court. The judgment was revived by a thirty day rule. That rule was, in fact, a scire facias. The proceeding was conformable to the usual practice in South Carolina. The court of common pleas of that state adjudged the execution to be awarded upon this revival. Can this court, under such circumstances, reverse that judgment? Suppose, the judgment of the court of common pleas had been founded on a scire facias, and that scire facias had been informal. Could this court, in such a case, reverse the judgment ? We contend, that it could not, in either case. The court that ordered the execution to be awarded, had jurisdiction so to do ; and its decision is final.
The 9th section of the law of South Carolina, respecting the thirty day rule to revive judgments, &c., gives express authority to the courts of that state to. issue execution without a scire facias. But it is objected, that this act is applicable only to cases of lapse of time, not to cases of the death of the party. But this is matter of construction, on which those courts were competent to decide.
The doctrine in the case of Ford v. Travis, so much relied upon by the defendant’s counsel, is only that an unconditional, unlimited administration, where the executor has previously obtained probate of the will, is void ; not that a temporary administration would have been so, in a like case.
4.	Admitting the execution to have been improperly issued, still the sale of the property under that execution was valid. All acts under a judgment obtained by fraud are valid ; « fortiori, if the judgment be founded on a mistake either of law or fact. Simms and Wise v. Slacum, 3 Cr. 306. It is laid down in 2 Bac. Abr. 270, tit. Execution, that “if, upon his judgment, * the plaintiff takes out *'fieri facias, and thereupon, the sheriff sells a
J term for years, to a stranger, and the judgment is afterwards reversed, the defendant shall only be restored to the money for which the term was sold, and not to the term itself ; for, by the writ, the sheriff had authority to sell; and if the sale may be avoided afterwards, few would be willing to purchase under executions, which would render writs of execution of no effect.” The following authorities go to establish the same point. Roll. Abr. 778 ;
6
1814]	OF THE UNITED STATES.	18
Griffith v. Frazier.
Cro. Eliz. 278 ; Cro. Jac. 246 ; Matthew Manning's casé, 8 Co. 96 ; Dr. Drury's case, Ibid. 142 ; Earl v. Brown, 1 Wils. 302. It is true, that these cases all relate to sales of personal property ; but there is no difference as it respects the sale of lands under a fieri facias, or what was equivalent thereto, as in the present case. These lands were sold as personal effects. 1 Haywood, N. C. 24-5.
Pinkney, contrá, contended, 1. That the case in 3 Bos. & Pul. did not state that the statute of Geo. HI. was founded on a doubt, but upon a clear defect of jurisdiction. That no case could be found to sanction the grant of administration after probate, in a case like the present. That the case of Ford v. Travis was decisive, that no such administration was valid in South Carolina.
2.	That the judgment of the ordinary was not conclusive, that he had no jurisdiction in a case like that under consideration. That the court of appeals of South Carolina was of this opinion, and had, therefore, declared the judgment of the ordinary void. 2 Bac. Abr. 376.
3.	That the judgment on the rule to show cause was not conclusive; and this, besides the other reasons which have been already mentioned, because it was against a person not a representative of the testator.
4.	That this was not the case of a sale to a third person, as in the authority cited from Bacon, and the other cases to the same point; but that the plaintiff claimed under Bordeaux, as a purchaser.
*That the statute of South Carolina, respecting the thirty day p-in rule, was only applicable to cases of lapse of time, not to cases of the L death of the party.
That as to the case in 1 Wils. 302, cited by the plaintiff’s counsel, it did not appear, that the court decided on the validity of the sale, nor that any person wished to disturb it.
Jones, on the same side, as to the law respecting a void judgment, cited Vin. Ábr. tit. Error; also Com. Dig. and Bac. Abr., same title.
Tuesday, February 15th, 1814. (Absent, Washington, J.) Marshall, C. J., delivered the opinion of the court, as follows:—The plaintiff in error, who was also plaintiff in the circuit court, brought a writ of trespass guare clausum fregit, in order to try his title to certain lands, lying in the district of South Carolina, which were in possession of the defendant. The title of the plaintiff, which constituted the sole question in the cause, appeared, on the trial, to be as follows :
Joseph Salvadore, being seised of the lands in which the trespass is alleged to have been committed, departed this life, some time in the year 1786, having first made his last will in writing, in which he named several executors, one of whom, Joseph Dacosta, made probate of the will, and took upon himself the burden of executing the same ; after which, in the year 1789, he left the state of South Carolina, and resided in Georgia. In the year 1790, letters of administration on the goods of Salvadore, unadministered by Dacosta, his qualified executor, were granted to J ames Lamotte. In August 1786, a judgment was obtained by Daniel Bordeaux against Salvadore. In January 1791, a thirty day rule, which, by an act of the state of South Carolina, was, in certain cases, substituted in the place
7
*20	SUPREME COURT	[Feb’y
Griffith v. Frazier.
*of a scire facias, was issued to revive this judgment against Lamotte, as administrator of Salvadore. This rule being served and returned, the following indorsement was made on it: “15th March, 1791, made absolute, subject to a future argument.” “ Fi. fa. 16th April 1791.”
An execution issued on this judgment, under which the land was sold, and was conveyed by the sheriff to Peter Freneau, by a deed dated the 6th day of June 1791. On the 16th of July 1796, a decree was rendered in the suit, Pierce Butler v. Daniel Bordeaux and Peter Freneau, directing the said Peter to convey to such person as Pierce Butler should appoint. In pursuance of this decree, Peter Freneau conveyed to Samuel Jackson, under whom the plaintiff claims by regular conveyances.
On the motion of the defendant, the circuit court instructed the jury, that the letters of administration granted to James Lamotte were totally void ; that therefore, the judgment of Bordeaux was not revived against the estate of Salvadore ; that the sale and conveyance by the sheriff passed no title to the purchaser ; and that the evidence was not sufficient to maintain the plaintiff’s action. The jury found a verdict for the defendant, and judgment was rendered in his favor. The plaintiff excepted to the opinion of the court, and has sued out a writ of error to the judgment.
The sole defect alleged in the title of the plaintiff being in that part of it which depends on the sale and conveyance of the sheriff to Peter Freneau, the validity of that sale is the principal if not the only question in the cause. In support of it the plaintiff contends, 1st. That the letters of administration, being durante absentia of the executor, were properly granted t0 James Lamotte. *2d. If the ordinary erred in granting these let-
J ters, still Lamotte was administrator de facto ; and his acts bound the estate of Salvadore, until those letters should be revoked. 3d. That the judgment on which the execution issued was properly revived by a court of competent jurisdiction, and its judgment can be questioned only in an appellate court. The negative of these propisitions is maintained by the defendant in error.
That the appointment of an executor, and his acceptance of the office, constitute a complete legal owner of the personal estate of the deceased, is admitted ; but it is contended, that these acts suspend, without annihilating the power of the ordinary. So long as the executor is capable of exercising the authority with which he has been invested by the testator, it can be conferred on no other person ; but when he becomes incapable, from any cause whatever, as by insanity or death, the power of appointing some person, who shall secure the estate from ruin, necessarily reverts to that tribunal which the law appoints for the general purpose of providing for the management of the property of dead persons. All cases of temporary administration, as, during the minority of an executor, or during his absence previous to the probate of the will, are considered as exercises of the same power, though in a less degree, and as proving that the ordinary may, after the executor has qualified, if he shall absent himself so as, in the opinion of the ordinary, to disqualify him from performing his duty, appoint an administrator de bonis non with the will annexed, whose power shall continue, until the return of the executor.
The court does not concur in this reasoning. In the cases stated at bar, and in all cases where temporary administration has been granted, unless
8
1814]	OF THE UNITED STATES.	21
Griffith v. Frazier.
under a special act of the legislature, the executor was, for the time, absolutely incapable of performing his duty. There existed an actual legal disability to perform the functions of his office. Until probate of the will, and until letters testamentary are obtained, the executor cannot obtain any judgment; because it cannot appear that he is executor. There is, therefore, an absolute necessity for appointing some person who, until probate, shall take care of’*the estate. But this is not the case with an exec- j-*™ utor who, after taking out letters testamentary, absents himself from L the state. He is still capable of performing, and he is still bound to perform, all the duties of an executor. There exists no legal disability in the executor, and consequently, there is no necessity for transferring to another those powers which the testator has conferred on a person selected by himself. This power does not appear ever to have been exercised by the ordinary, in England, anterior to the statute of 38 George III. ; and in South Carolina, the ordinary possesses no power which was not possessed by the ordinary in England, previous to that statute. The practice of the particular ordinary who acted in this case, would not be sufficient to constitute the law, had it even never received judicial reprobation ; but the case of Ford v. Travis puts an end to any doubt on this point.
The second point is one of more doubt and greater intricacy. That the ordinary erred in granting letters of administration to Lamotte, is thought very apparent; but the effect of these letters is less obvious. By the plaintiff, it is contended, that they constituted Lamotte an administrator defacto, rendered his acts valid, so far as third persons are interested, and exempted them from question, where they can be examined only incidentally. By the defendant, it is contended, that they were granted by a person having no jurisdiction in the case, and are, therefore, an absolute nullity ; that Lamotte was not, de facto, the administrator of Salvadore, and that his acts, as administrator, stand on no better or higher ground than the acts of any other person who should assume that character.
The well-known distinction between an erroneous act or judgment by a tribunal having cognisance of the subject-matter, and the act or judgment of a tribunal having no cognisance of the subject, is not denied ; but it is contended, that the ordinary had jurisdiction in this case. The ordinary, in South Carolina, is the court in which wills are proved ; in which letters testamentary and letters of administration are granted. He judges whether the applicant be entitled to administration or not, and rejects or admits the claim, according *to his opinion of the law. Whether his judgment be correct or not, still it is his judgment; and when exercised upon *-an application for administration, it is exercised on a subject cognisable in his court. That he grants letters of administration, in cases not expressly authorized by statute, and in which a will exists, in which an executor is named, proves that he has jurisdiction in such cases ; and if he grants administration in one of them, improperly, the judgment is erroneous and voidable, but not void. This argument has been very strongly urged, and there is great force in it. The difficulty of distinguishing those cases of administration in which a court, having general testamentary jurisdiction, may be said to have acted on a subject not within its cognisance, is perceived and felt. But the difficulty of marking the precise line of distinction, does not prove that no such line exists.
9
23
SUPREME COURT
[Feb’y
Griffith v. Frazier.
To give the ordinary jurisdiction, a case, in which, by law, letters of administration may issue, must be brought before him. In the common case of intestacy, it is clear, that letters of administration must be granted to some person by the ordinary ; and though they should be granted to one not entitled by law, still the act is binding, until annulled by the competent authority ; because he had power to grant letters of administration in the case. But suppose, administration to be granted on the estate of a person not really dead. The act, all will admit, is totally void. Yet,, the ordinary must always inquire and decide whether the person whose estate is to be committed to the care of others, be dead or in life. It is a branch of every cause in which letters of administration issue. Yet the decision of the ordinary that the person on whose estate he acts is dead, if the fact be otherwise, does not invest the person he may appoint, with the character or powers of an administrator. The case, in truth, was not one within his jurisdiction ; it was not one in which he had a right to deliberate ; it was not committed to him by the law. And although one of the points occurs, in all cases proper for his tribunal, yet that point cannot bring the subject within his jurisdiction.1
*The case of letters of administration granted on the estate of a J person in full life, is not the only one which may serve for illustration ; suppose, administration to be granted on the estate of a deceased per-
1 In Allen v. Dundas, 3 T. R. 130, Judge Buller says, that “ in such case, the ecclesiastical court have no jurisdiction, and the probate can have no effect; their jurisdiction is only to grant probates of the wills of dead persons. The distinction in this respect is thus: if they have jurisdiction, their sentence, as long as it stands unrepealed, shall avail in all other places; but where they have no jurisdiction, their whole proceedings are a nullity.” And accordingly, the supreme court of Massachusetts, in Joekamsen v. Suffolk Savings Bank, 3 Allen 87, decided, that where administration upon the estate of a person in full life had been granted to one who, by virtue of his letters, received from a savings bank the amount of a deposit made by the supposed decedent, the latter was entitled to recover the amount from the bank, notwithstanding the prior payment to the administrator. And in a very recent case, the supreme court of Pennsylvania arrived at the same conclusion, holding, that letters of administration granted upon the estate of a living person, were not merely voidable, but absolutely void; and that a voluntary payment to the holder of such letters, by a debtor of the alleged decedent was no protection, though it might be otherwise, if payment was compelled by a court of competent jurisdiction. Devlin v. Commonwealth, 29 Pitts. L. J. 143. So, in McPherson v. Cunliff, 11 S. & R. 430, Judge Duncan says, “ the matter which gives the orphans’ court jurisdiction, is the death of the owner, intestate, for
10
if administration were taken out on the effects of a living man, or of one who died testate, the administration itself would be void.” And see Fisk v. Newell, 9 Texas 13; and the note of Judge Redfield, in 24 Am. L. Reg. 212. The court of appeals of New York, in the case of Roderigas v. East River Savings Institution, 63 if. Y. 460, arrived at a directly opposite conclusion, on the theory that the death of the party being a jurisdictional fact, the finding of such fact by the surrogate was conclusive, in favor of a third person, who had paid money to the administrator, on the faith of his decree. And in Comstock v. Crawford, 3 Wall. 396, it was ruled, that a recital in the record of a probate court, of facts necessary to confer jurisdiction, is primci facie evidence thereof, in a collateral proceeding. Where the jurisdiction depends upon a fact which the court is required to ascertain in its decision, such decision is conclusive, unless reversed on a direct proceeding for that purpose. The Rio Grande, 1 Woods 279. It has, however, been decided in New York, that the party who attacks a judgment for want of jurisdiction, may show the non-existence of jurisdictional facts, by evidence dehors the record, though the record recite their existence, as, by showing that the surrogate never in truth passed upon them as facts. Roderigas v. East River Savings Institution,.76 N. Y. 316. An administrator appointed under such circumstances is not a de facto officer. Ibid. 324.
1814]	OF THE UNITED STATES.	24
Griffith v. Frazier.
son, whose executor is present, in the constant performance of his executorial duties. Is such an appointment void, or is it only voidable ? In the opinion of the court, it would be an absolute nullity.
The appointment of an executor vests the whole personal estate in the person so appointed. He holds as trustee for the purposes of the will, but he holds the legal title in all the chattels of the testator. He is, for the purpose of administering them, as much the legal proprietor of those chattels as was the testator himself while alive. This is incompatible with any power in the ordinary to transfer these chattels to any other person by the grant of administration on them. His grant can pass nothing : it conveys no right; and is a void act.
If the ordinary possesses no power to grant administration, where an executor is present performing his duty, what difference can his absence make, provided that absence does not disqualify him from executing his trust ? If all his powers as an executor remain, if he is still capable of appearing in courts of justice as the representative of the deceased, if he is still the legal owner of the chattels of the deceased, and still capable of disposing of them, it would seem, that he is potentially present, though personally absent. It is not easy to perceive any principle on which the ordinary can assert his power to take the estate out of the executor and vest it in an administrator. If he cannot do this, then the attempt to do it must be a void act. If the administrator durante absentia be only the agent of the executor, it still occurs, that the executor can himself appoint, and is the proper person to appoint, his own agent. There is no necessity for the intrusion of the ordinary.
Let the case be supposed, of a suit by the executor, while actually resident abroad. Would he be incapable of sustaining the action ? Would his absence be a good *plea in bar? If it would not, how can the r^9_ grant of letters of administration to another take the property in *• the thing sued for, out of the executor, and place it in that other ?
Letters testamentary, when once granted, are not revocable by the ordinary. He cannot annul them, or transfer the legal interest of the executor to any other person.' His rights and his duties are beyond the reach of the ordinary. How, then, can this be effected by the grant of letters of administration ?
The cases in which administration has been granted, notwithstanding the existence of a will, appear to be cases in which it is not apparent that there is any person possessing right in the chattels of the testator, or cases in which that person is legally disqualified from acting. Where administration is granted, pending a dispute respecting a will, it is not certain, that there is an executor, or that there is a will. If it be granted during the minority of an executor, it is because the executor is legally disqualified from acting, and indeed, has not taken upon himself, and could not take upon himself, the trust reposed in him. He may, when of age, reject all the rights and powers conferred by the will; and consequently, the interest is not yet a vested interest. The rights and powers of the ordinary remain, until those of the executor commence.
So, in the case of an absent executor who has not yet made probate of the will and qualified. Those letters testamentary which are indispensable to his character as executor, and which, during their existence, leave the
11
25
SUPREME COURT
Griffith v. Frazier.
[Feb’y
ordinary without any further power over the subject, are not yet granted. The executor has as yet no evidence that he is executor; he is not yet ’able to act as one. He may never be able to act; for he may never take out letters testamentary; he may renounce the executorship. The ordinary, then, is not yet deprived of that power which he possesses to appoint a
Person f° Represent a dead man who has no representative. His *juris-
-1 diction over the subject remains, until he parts with it, by issuing letters testamentary.
The difference between granting administration in cases where there is a qualified executor, capable, in law, of acting, and where he has not qualified is such as, in reason, to justify the opinion that though, in the latter case, the ordinary may have jurisdiction, and his act, though erroneous, may be valid till repealed, yet, in the former case, he can have no jurisdiction, and his act is in itself an absolute millity. If, under any circumstances, the ordinary could grant administration, during the absence of an executor who has made probate of the will and is legally competent to act, then he would have jurisdiction of the subject, and would judge of those circumstances ; but if, in no possible state of things, he could grant such administration, it would be difficult to conceive how he can have jurisdiction.
If we refer to authority, we can find no case and no dictum which admits the jurisdiction of the ordinary, where there is an existing executor capable of acting. In many cases, it is stated, that an administration granted where there is such an executor is void. Toller, in his Law of Execiltors, page 120, says, “ If there be an executor, and administration be granted, before probate, and refusal, it shall be void, on the will’s being afterwards proved, although the will were suppressed, or its existence were unknown, or it were dubious who was executor, or he was concealed, or abroad, at the time of granting the administration.” It is also void, “ if granted because the executor has become a bankrupt,” or if granted, “ durante minoritate, where the infant had attained his age of seventeen,” until the statute of 38 Geo. HI. So, “ if granted by a bishop, where the intestate had bona notabilia, or by an archbishop, of effects in another province.”
The case of Ford v. Travis, decided in South Carolina, is express to this point, and renders a further reference to English books unnecessary.
1 The counsel for the plaintiff admits this to be the law, * where an
J absolute administration is granted; but denies the law to be applicable to the grant of a temporary administration. However correct this distinction may be, in many cases, its application to that at bar is not admitted. No temporary administration can be granted, where there is an executor in being, capable of acting, and where the case will not justify the grant of a temporary administration, it would seem to be as completely out of the jurisdiction of the ordinary, as the grant of an absolute administration, where that is not within his power.
The case put by Toller, of administration durante minoritate, where the executor is of the age of 17, seems full in point. This is a temporary administration, and the minority of the executor is a fact for the consideration of the ordinary. Yet if, in such a case, he grants administration, the act is void, because, in fact, it is not a case in which he can grant it.
The reasoning of the court in the case of Ford v. Travis, appears applicable to this case. They say, the executor,having proved the will, “was in
12
1814]	OF THE UNITED STATES.	27
Griffith v. Frazier.
the nature of a trustee ; he could neither abandon his trust, nor be deprived of his interest in the estate of the deceased, by any act of the ordinary. The ordinary, by proving the will and qualifying the executor, executed his power ; and no law exists in this state, authorising him to resume it during the lifetime of the qualified executor, notwithstanding he may be absent from the state. Letters of administration granted under such circumstances are void db initio.
If the ordinary cannot resume his power, so as to grant an absolute administration, he cannot resume it for a limited time. He cannot, by any act of his, divest the interest of the executor for an instant. The power may revert to him by operation of law, but cannot be assumed by any act of his own.
The grant of a temporary administration, as, during the minority of an executor, is ad usum et commodum *executoris. But in this case, the r#OQ administration is, for the time, absolute, and makes the administrator *• the entire representative of the deceased. It would not be unworthy of remark, if the case depended on it, that though the application of Lamotte was for administration during the absence of the executor, yet the grant itself is without limitation.
But, in its very nature, the appointment of an administrator, during the absence of an executor, under no disability, is essentially nothing more than the appointment of an agent for that executor; This, the ordinary has not the power to db ; the executor alone can appoint his agents.
If the ordinary had no jurisdiction in the case, then the grant of administration was void db initio, and all the acts of the grantee are void. Toller 128 ; 3 T. R. 125.
It is contended by the plaintiff, that could this administration even be considered as null, where that forms the direct question before the court, as it did in Ford n. Travis, yet that point cannot be examined, where it is collateral and incidental. The answer which has been given at bar to this argument is entirely satisfactory. The question has never been examined in a court of law, sitting as an appellate court. The question has never been, whether the letters of administration shall be revoked or not, but whether they were originally void, so as not to warrant the particular act in support of which they were alleged. But in this case, the letters of administration come as directly before the court as in the case of Ford v. Travis. The conveyance from the sheriff to Freneau forms a part of the plaintiff’s title ; and the validity of that conveyance may depend on the question whether Lamotte was or was not the administrator of Salvadore. The question, therefore, must necessarily be decided ; and a majority of the court is of opinion, that administration was granted by a court having no jurisdiction in the particular case, and is, therefore, absolutely void.
*3d. It is contended on the part of the plaintiff, that the judg- r4s ment on which the execution issued was properly revived by a court L of competent jurisdiction, whose judgment is, therefore, conclusive, until reversed.
The first objection made to this judgment of revivor is, that it was made without legal process. The thirty day rule is substituted for the scire facias only in cases where lapse of time prevents the plaintiff from suing out execution. However this court might construe the law, on an appeal from
13
29	SUPREME COURT	[Feb’y
Griffith v. Frazier.'
a judgment of revivor in such case, that question has been decided by a court of competent jurisdiction, and cannot be reviewed here.
The second objection is, that the letters of administration being a mere nullity, no party representing the estate of Salvadore was before the court, and consequently, the judgment could not bind that estate. This question is one of considerable difficulty. Had the judgment been revived against the executor himself, without the service of process, it would, perhaps, while in force, have protected all proceedings under it. But this judgment is revived against Lamotte, who was not the representative of Salvadore. In the opinion of a majority of the court, an execution on this judgment could not legally be levied on the property of Salvadore ; and if so, the title was not vested in the sheriff by the service of the execution, and could not be con-conveyed by him to the purchaser. Upon this point, the case cited from 1 Wils. 302, is a strong one against the opinion of the court: but in that case, the execution, though irregular, was issued on a real judgment, and justified the sheriff in taking the effects of the deceased. On its face, it was unexceptionable; it issued at an improper time ; but in all other respects was correct. In this case, the execution issued on a judgment which was itself a nullity ; and it authorized the sheriff to take the effects real and personal of Joseph Salvadore, in the hands of James Lamotte to be administered. Now the property of Salvadore was not in the hands of Lamotte, but was in the hands of his executor.
*The case in Wilson, too, is so briefly, I might say obscurely,
J reported, as to leave the principle, on which the court decided, entirely uncertain. It does not appear, that the object of the motion extended further than the restoration of the money. This was not an attempt to set aside the sale ; and nothing appears in the case, from which is to be conclusively inferred, what the opinion of the court would have been on that question.
In the opinion of a majority of the court, there is no error in the judgment of the circuit court, and it is affirmed with costs.
Wednesday, February 16th. Harper observed, that he understood the opinion of the court to be founded considerably on the form of the fieri facias, inasmuch as it directed the sale of the lands of Salvadore in the hands of Lamotte, when, in fact, there were no lands in the hands of Lamotte.
Marshall, Ch. J.—That was one ground of the opinion : but another, was, that the sale was founded on a void judgment.
Harper, as to the first point, suggested to the court that the form of the fieri facias was against the lands as well as the goods.
14
1814]
OF THE UNITED STATES.
30
Van Ness v. Forrest, (a)
Action on promissory note.
A promissory note given by one member of a commercial company, to another member, for the use of the company, will sustain an action at law by the promisee, in his own name, against the maker, notwithstanding both parties were partners in that company, and the money, when recovered, would belong to the company.
If the declaration be upon a joint note, and the defendant plead, that the note is the separate note of one of the defendants, and was given to and accepted by the plaintilf, in full satisfaction of the debt, this plea is bad, upon special demurrer, because it amounts to the general issue.1
Error to the Circuit Court for the district of Columbia. The case as stated by Marshall, Ch. J., in delivering the opinion of the court was as follows :
*The defendant in error, who was president of a commercial com-pany, consisting of four or five hundred members, sold certain mer- >• chandise, the property of the company, to Jehiel Crossfield, and took his note, payable in twenty days, to Joseph Forrest, president of the commercial company, for the purchase-money. Default having been made in payment, Joseph Forrest instituted a suit against Jehiel Crossfield and John P. Van Ness, who was a dormant partner of Crossfield, and also a partner of the commercial company.
The declaration contains several counts. The first on the promissory note, which was charged as the note of Crossfield and Van Ness, trading under the firm of Jehiel Crossfield ; the second and third, for goods, wares and merchandise sold and delivered ; the fourth, for money had and received by the defendants, to the use of the plaintiff ; and the fifth, on an insimul computassent.
The defendant, Van Ness, pleaded the general issue, on which plea issue was joined. He also pleaded in bar several special pleas, amounting in substance to this, that the several assumpsits in the declaration mentioned, were made for goods, wares and merchandise belonging to the commercial company, consisting of many partners, and of which both the plaintiff and himself were members.
The third plea alleged, that the plaintiff did agree to accept, and did acccept, the separate promissory note of the said Crossfield, in payment of all and singular the debt and debts, promises and assumptions in the plaintiff’s said declaration above supposed ; in pursuance and execution of which agreement aforesaid, the said defendant, Jehiel Crossfield, made the said promissory note in the plaintiff’s said declaration mentioned, and delivered the same to the said plaintiff, on the day of the date of the said note, at the county aforesaid, and the plaintiff then and there accepted the same as payment, in pursuance of the aforesaid agreement.
To these several special pleas, the plaintiff in the *court below demurred specially, and the defendant joined in demurrer. On argu- L ment, the demurrers, except to the third plea, were overruled, and the pleas sustained as to the 2d, 3d and 4th counts, but the demurrers were sustained
(a) February 8th, 1814.. Absent, Washington, Justice.
1 Matthews V. Matthews, 2 Curt. 105 ; Halstead v. Lyon, 2 McLean 226; Dibble V. Dun-
can, Id. 553 ; Curtis v. Central Railway, 6 Id. 401. See Bauer v. Roth, 4 Rawle 83.
32	SUPREME COURT	[Feb’y
Van Ness v. Forrest.
as to the 1st and 5th counts of the declaration. The demurrer was also sustained as to the 3d plea, which was adjudged bad as to all the counts.
On the trial of the issues, Van Ness objected to the evidence offered by the plaintiff below, to support the first count, and his objection being overruled, excepted to the opinion of the court. This exception brought up the whole question made by the pleas on the point, that the goods for which the note was given, were partnership goods belonging to a company of which both the plaintiff and defendant were members.
The jury found a verdict for the plaintiff below, on which judgment was rendered, and the cause is brought into this court by writ of error.
Jones, for the plaintiff in error, contended, 1st. That this action is not sustainable, it being brought by one partner against another ; and 2d. That the separate note of Crossfield was a discharge of the original debt due from Crossfield and Van Ness.
1.	An action does not lie by one partner against another, unless for a balance stated and acknowledged upon settlement of the partnership accounts. The suit was as much for the use of Van Ness, as of any other of the stockholders. The plaintiff was only a conventional president. The stockholders must all join in the action, and then Van Ness would be both plaintiff and defendant.
2.	The plea states, that the plaintiff agreed to take the separate note of Crossfield, in full satisfaction for the goods sold and delivered. This was decided by this court to be a good defence in the case of Sheehy v. Mandeville, 6 Cranch 253.
*	*J. Law, contra.—It is true, that one partner cannot sue another
J on an implied promise, but he may upon an express promise. Foster wAllanson, 2 T. R. 479 ; Wright v. Hunter, 1 East 20. After verdict, the promise shall be taken to be express. ■ Grant v. Fay I or, 4 Cr. 224.
The defendant cannot set up a trust to defeat the plaintiff’s legal right to recover. If the trustee of a feme sole should bring an action against the husband, he could not defend himself, by pleading that the money, if recovered, would be for the use of bis wife, and that the wife could not sue him at law. The defendant cannot be permitted to look behind the legal plaintiff, for the purpose of setting up an inequitable defence. If this doctrine were to prevail, private banking companies could not recover money lent t® stockholders.
The causes of demurrer assigned are, that the plea amounts to the general issue ; and that the plea neither admits nor denies the promise laid in the declaration.
Jones, in reply.—The cases cited do not take this case out of the general principle, that one partner cannot sue another. This is not an express promise of the defendant. It is only by implication that he is charged. It is a promise that the law raises upon the fact, that he is a partner with him who expressly promised. In all the money counts, the promise is implied.
As to the objection that the plea amounts to the general issue—that point is settled also in the case pf Sheehy v. Mandeville.
Marshall, Ch. J., after stating the case, delivered the opinion of the court, as follows :—It is contended by the plaintiff in error, 1st. That this 16
1814]
OF THE UNITED STATES.
Van Ness v. Forrest.
33
action is not sustainable, it being brought by one partner against another. *2d. That the separate note of Crossfield, discharges the original debt, r*.,. due from Crossfield and Van Ness.
As the first error assigned by the plaintiff, is, if it be really an error, apparent on the bill of exceptions, as well as in the pleas, it is not necessary to examine the formality of the pleas respecting it. It is alleged, that, at law, one partner can sue another, on a claim growing out ot the partnership, in no other case than for a general balance on a stated account.
The terms in which this proposition has been laid down are perhaps too general. In the case at bar, the suit is instituted on a promissory note given, not to the company, but to Joseph Forrest, president of the company. Although the original cause of action does not merge in this note, yet a suit is clearly sustainable on the note itself. Sueh suit can be brought only in the name of Joseph Forrest. It can no more be brought in the name of the company, than if it had been given to a person, not a member, for the benefit of the company. The legal title is in Joseph Forrest, who recovers the money, in his own name, as a trustee for the Company. Upon the record, and technically speaking, he is the sole plaintiff, and the court can perceive no reasonable or legal objection to his sustaining an action on the note. The principle that a company cannot sue its members, does not apply to the case ; nor does the principle, that a partner cannot sue a partner on a partnership transaction, apply to any case where a note in writing is. given for money, not to a firm, but to an individual member.
The third plea alleges, that the plaintiff in the court below agreed to» accept the separate promissory note of Crossfield in payment, and that, in execution of this agreement, Crossfield made the note in’ the declaration mentioned, which was accepted in payment of the several assumptions-stated in the declaration. Now, the note in the declaration mentioned,, is a joint note, so that this plea in one place alleges it to be a joint note, and in another place to be a several-note. *It becomes unnecessary to in- [*35 quire into the effect of this repugnancy, if it be one, because the *-plea, if to be understood as averring that the note, in the declaration mentioned, is a several and not a joint note, would amount to the general issue.. The plea is no. more, to the first count, than non assumpsit. For,, if the note was not the note of Van Ness, he had not made the assumpsit stated in the first count. This is ill, upon a special demurrer, when assigned as. cause of demurrer.
The plaintiff in error supposes the case of Sheehy v. Mandeville & Jamesson, reported in 6 Cranch 253, to be a case in his favor, on this point. The court thinks otherwise. In that case, as in this, a note was given by one partner for a debt contracted by the firm. In that case, as in this, one count in the declaration was special, on the note, stating it to be a joint note, and other counts were general, on the original transactions. The defendant, whose name was not on the note, stated it to have been received in discharge of the open account. The court decided, that the plea was good, not in bar of the special count on the note itself, but in bar of the general counts, for goods sold and delivered. Upon the special count, the court was in favor of the plaintiff below, who was also plaintiff in error, and the judgment of the circuit court, which had been against him, was reversed. The case of Sheehy v. Mandeville & Jamesson, then, is not in favor of the
8 Cranch—2	17
35	SUPREME COURT	[Feb’y
Bank of Alexandria v. Herbert.
plaintiff in error, so far as his third plea applies to the first count in this declaration.
This court is of opinion, that there is no error in the judgment of the circuit court, either in sustaining the demurrers to the several pleas filed in that court to the first count in the declaration, or in admitting the note, in the declaration mentioned, to be given in evidence to the jury, on the trial of the issue of fact. This opinion renders it unnecessary to examine the decision of the circuit court, as it respects the pleas to the other counts, since, should their decision respecting the pleas to those counts even be deemed erroneous, their judgment will stand.
Judgment affirmed, with damages, at the rate of six per cent, per annum, and costs.
*36]	*Bank of Alexandria v. Herbert, (a)
Trustees in insolvency.
The trustee of an insolvent debtor, in the district of Columbia, represents the creditors of the insolvent, and can take advantage of a defect in a mortgage, of which the insolvent himself could not.* 1
This was an appeal from the Circuit Court for the district of Columbia, sitting in chancery, at Alexandria.
A bill in chancery was brought by W. Herbert, junior, trustee for the creditors of John Potts, an insolvent debtor, under the act of congress for the relief of insolvent debtors within the district of Columbia, against the Bank of Alexandria, to recover the proceeds of a tract of land, the property of Potts, which had been sold by consent, and the money deposited in the bank. This land had been conveyed by Potts to Ludwell Lee, in trust to secure the payment of money borrowed of the bank by Potts, but the deed of mortgage had not been recorded within the time limited by the law of Virginia, which governs this case, and which declares that all deeds of mortgage whatsoever, although good between the parties, shall be void as to creditors and subsequent purchasers without notice, unless they be recorded within eight months after their date.
Swann, for the appellants.—Although the deed to Lee would be void as to a subsequent purchaser for valuable consideration, without notice, yet it is not void as to Herbert, who is the trustee of Potts under the insolvent law for the district of Columbia. (2 U. S. S.tat. 237.) A trustee under that law is like an assignee under a commission of bankruptcy in England. He stands merely in the place of the insolvent ; he takes the estate as the insolvent held it ; he is bound by the same equity, and liable to the same obligations. Cooper’s B. L. 128, 307, 2 Ves. 633 ; 1 Atk. 94, 162 ; Taylor v. Wheeler, 2 Vern. 564, 609 ; Russel v. Russel, 2 Bro. C. C. 269. The deed to Lee being good against Potts, is equally valid against Herbert.
, *Taylor, contrà.—No English authority can apply directly to this J case. Potts remained in possession ten years after the deed to Lee,
(a) February 14th, 1814. Absent, Washington, Justice.
1 And see Casey v. Cavaroc, 96 U. S. 487.
18
1814]	* OF THE UNITED STATES.	37
Bank of Alexandria v. Herbert.
and until his insolvency and the execution of the deed to Herbert, when he delivered to Herbert the possession.
But the deed is void as to creditors as well as purchasers, and creditors are not affected by notice, although purchasers are. The fact that Herbert had notice does not appear ; but if it did, he represents the creditors ; and their rights are his. If there had been no deed to Herbert, the creditors might have obtained a decree, in their own names, to vacate the deed to Lee and compel a sale.
But if this cause depends upon the decisions under the bankrupt law, yet the assignee pf a bankrupt represents the creditors, and can take advantage of defects which the bankrupt himself could not. Cooper 307. In the case of Taylor v. Wheeler, 2 Vern. 564, it does not appear that the creditors had a right to avail themselves of the defect in the mortgage. If Herbert represents the creditors, the fourth section of the statute of Virginia is conclusive. (1 P. P. Rev. Co. 157.) If he does not represent the creditors, then all the provisions of the insolvent law are of no avail. If the deed cannot be set aside by a bill in the name of the trustee, the judgment-creditors may file a bill in their own names and set it aside.
Swann, in reply.—The assignee of a bankrupt also represent the creditors, but yet it has been decided (1 Atk. 94), that although creditors might vacate a deed, yet an assignee could not. The case of Taylor v. Wheeler is very strong. The mortgage was void at law, for want of a surrenderor the copyhold in due time, yet it was decreed, that it should be made good against the assignee of the mortgagor, who, it was admitted, represented the creditors. But the chancellor said, that the complainant also was *a creditor, and had trusted to this particular fund, but the others r*oo were general creditors ; and upon that distinction, his decree seems L to be founded. The reason of that case is precisely applicable to the present. The bank lent the money upon the credit of this very security.
February 16th, 1814. Marshall, Ch. J., delivered the opinion of the court, as follows —In this case, a bill was brought in the circuit court for the county of Alexandria, by William Herbert, jr., trustee for the creditors of John Potts, an insolvent debtor, against the Bank of Alexandria, to recover the proceeds of a tract of land, the property of Potts, which had been sold by consent, and the money deposited in bank. This land had been conveyed by Potts to the bank, to secure the payment of a sum of money borrowed by him, but the deed of mortgage had not been recorded until eight months after its date had elapsed. The law of Virginia, which governs this case, declares all deeds of mortgage whatsoever, though good between the parties, to be void as to creditors and subsequent purchasers, without notice, unless they be recorded within eight months from the date. The question is, whether this mortgage can be set up in favor of the bank against the trustee for the creditors ? The circuit court decreed in favor of the trustee, and from that decree there is an appeal to this court.
For the appellant, it is contended, that the trustee may be assimilated to the assignees of a bankrupt, and he has adduced some cases from the books showing that, in England, a deed declared to be void in law has been supported against the assignees, in favor of the particular creditor who holds a lien upon it.
19
38	SUPREME COURT	[Feb’y
Marcardier v. Chesapeake Insurance Co.
The resemblance between the trustee for the estate of an insolvent debtor, in the district of Columbia, and the assignees of a bankrupt is admitted ; yet a clear distinction exists between the cases cited at bar and * 1 *that before the court. In those cases, the deed was declared void,
-* without any view to creditors. In this case, the deed is declared void for the particular benefit of creditors. To set up this deed against the creditors, would be to defeat the very object for which the law was made. The counsel for the appellant is well apprised of this distinction, and though he claims for his clients the benefit of this deed against the trustee, he admits that it could not be sustained against the creditors suing in their own names.
In reason, there can be no difference between this suit, which asserts the right of the creditors, in the mode prescribed by law, and an assertion of that right in their own names. Nor does the law distinguish between them. The cases cited did not turn on any distinction between the rights of the assignee and the creditors, but on the preference which ought to be given to him who has trusted on the credit of the particular fund over those who had trusted the general fund. The decree is affirmed, with costs.
Decree affirmed.
Marcardier v. Chesapeake Insurance Company.
Marine insurance.—Total loss.—Memorandum articles.—Charter-party.
Where a technical total loss is sought to be maintained, upon the mere ground of deterioration of the cargo, at an intermediate port, to a moiety of its value, all deterioration of memorandum articles must be excluded from the estimate. Therefore, in a cargo of a mixed character, no abandonment for mere deterioration in value, during the voyage, can be valid, unless the damage on the memorandum articles exceed a moiety of the value of the whole cargo, including the memorandum articles.1
Where the general owner of a ship retains the possession, command and navigation of the same, and contracts to carry a cargo on freight, for the voyage, the charter-party is to be considered as a mere affreightment, sounding in covenant, and the freighter is not clothed with the character or legal responsibility of ownership.2 In such case, the general owner is also owner for the voyage; consequently, if he be the master of the vessel, he is incapable of committing barratry.
Error to the Circuit Court for the district of Maryland. The facts of this case were thus stated by Story, J., in delivering the opinion of the court :
This is an action on a policy of insurance, underwritten by the defendants, on the 29th of October 1806, for $31,000, upon any kind of lawful goods on board the brig Betsey, whereof Alexander McDougal was then * , *master, on a voyage at and from New York to Nantes. McDougal
-* was the general owner of the brig, and on the 1st day of October 1806, by a charter-party of affreightment, made with the plaintiff, granted and to freight let, to the plaintiff, the said brig, excepting and reserving her cabin, for the use of the master and mate, and for accommodation of
1 See Morean v. United States Ins. Co., 1 Wheat. 219 ; s. c. 3 W. C. C. 256; Humphreys v. Union Ins. Co., 3 Mason 429; Robinson v. Commonwealth Ins. Co., 3 Sumn. 220; Great
20
Western Ins. Co. v. Fogarty, 19 Wall. 640.
2 Reed v. United States, 11 Wall. 601; Leary v. United States, 17 Id. 611; Shaw «.‘United States, 93 U. S. 235.
1814]	•	OF THE UNITED STATES.	40
Marcardier v. Chesapeake Insurance Co.
passengers, as therein mentioned, and so much room in the hold as might be necessary for the mariners, and storage of water, wood, provisions and cables, for the voyage from New York to Nantes ; and McDougal, by the same instrument, covenanted to man, victual and navigate the brig, at his own charge, during the voyage, and to receive on board any shipment of goods, not contraband, which the plaintiff should tender at the side of the ship, or within reach of her tackles, at New York, and to stow and secure the same, and proceed therewith to Nantes, and there discharge the same. The passengers on board the brig were to be at the joint expense of the parties, and the passage-money was to be equally divided between them. The other clauses in the charter-party are not material to be stated, except that the plaintiff covenanted to pay the stipulated freight and demurrage. The cargo put on board by the plaintiff, was of the invoice value of |29,889, of which $7439 were in memorandum articles.
The brig sailed on the voyage, under the command of McDougal, on the 9th of November 1806, and during the voyage, was compelled by stress of weather, and other accidents, to bear away for the West Indies, and arrived at the port of St. Johns, in Antigua, on the 2 2d day of December. There the master made application to the vice-admiralty for a survey, &c., and such proceedings were had upon his application, that the cargo was landed, and by a decretal order of the court, of the 31st of January 1807, the same was ordered to be sold for the benefit of all concerned, reserving thé question as to freight. Under this decree, the cargo was accordingly sold, and the sales completed before the 28th of March 1807 ; and the net proceeds of the whole of the plaintiff’s property amounted to $13,767. The net proceeds of the memorandum articles, included in the same sum, were $6863.30. The whole proceeds were paid over to an agent .appointed by McDougal, and the freight for the whole voyage was allowed him by the admiralty, upon a rêport *of commissioners, to whom the question was referred, p. 1
The brig was repaired at Antigua, within a reasonable time, at L the expense of one-sixth only of her value, and capable of performing the voyage with the original cargo ; but McDougal voluntarily abandoned the voyage, at Antigua, for his own emolument and advantage. Of the cargo, 99 bags of coffee were spoiled and thrown overboard, and the residue greatly damaged by the perils of the seas ; and the whole cargo, including the memorandum articles, sustained a damage, during the voyage, exceeding a moiety of its original value. On the 4th of February 1807, and within a reasonable time after receiving information of the loss, the plaintiff abandoned the whole cargo to the underwriters.
The declaration contained two counts, for a total loss : 1st, by the perils of the seas ; and 2d, by barratry of the master. At the trial, the court below, upon the facts and circumstances above stated, held that the plaintiff was not entitled to recover, as for a total loss of the cargo insured, including the memorandum articles ; and the cause came up to this court, upon a bill of exceptions to that opinion.
Harper^ for the plaintiff.—The great controversy between the parties in this case, turns on the question, whether the loss of the cargo now under consideration, was partial or total. It is contended, on the part of the plain-21
41	SUPREME COURT	* [Feb’y
Marcardier v. Chesapeake Insurance Co.
tiff, that it was a total loss. 1st. By the dangers of the seas. 2d. By the "barratry of the master.
By the dangers of the seas : 1st. Because the voyage was broken up and lost by the deterioration of the cargo, to more than half of its value. 2d. Because there may be a total loss of memorandum articles, by the loss of the voyage ; although the articles themselves remain in existence, and of some value.
*By the barratry of the master : 1st. Because the acts imputed to J him, amount to barratry, if he were in a situation to commit it. 2d. Because by the charter-party, the plaintiff became owner pro hdc vice, and McDougal merely master, so as to be in a situation to commit barratry.
The question to be first considered, may be stated as follows : Whether, in case a cargo consists partly of memorandum articles (on which no partial loss can be recovered), a total loss is incurred, by the breaking up of the. voyage on account of such a deterioration of the whole cargo (including a deterioration of the memorandum articles), as reduces the value of the whole cargo more than one half? We hold the affirmative of the question.
But there are two cases which have been considered as very strong in favor of the negative. These are, 1st. The case of Wilson & another v. Smith, 3 Burr. 1550, cited also in Marsh. (1st Am. ed.) 141. This was of a ship with a cargo of corn, which, having met with a storm, was obliged to run for the nearest port to refit, where she incurred a considerable expense in repairs. On her arrival at her port of destination, it was found, that the corn was damaged to more than half its value. Lord Mansfield decided, that this loss, not being of the nature of a general average, nor arising from the ship’s being stranded, could not be recovered on the policy ; for that the words of the memorandum, “ free from average, unless general, or the ship be stranded,” did not make a condition, but only an exception; The answer to this case is, that the vessel had arrived at the piade of destination.; the voyage, therefore, was not broken up, and so no total loss could be claimed, oil the ground, that the cargo was deteriorated more than half its value.
*.	*2d. The other case, and that which is chiefly relied upon by the
J defendants, is the case of Cocking v. Fraser, Marsh. (1st Am. ed.) 144. Here, the voyage was broken up ; and it was decided by Lord Mansfield, and the other justices who sat in the cause, one of whom was Mr. Justice Buller, that if the articles for which the insurer is warranted to be free from average, except general, specifically ' remain, after the voyage, though by sea damage they are rendered of no value, yet, if the ship has not been stranded, this is only a partial loss, for which the insurer is not liable. The authority of this case, it must be confessed, would go far to prevent the present plaintiff from recovering as for a total loss, were it not for the observations made upon it by Lord Kenyon, in the case of Barnett v. Kensington, 7 T. R. 210 ; also Marsh. (1st Am. ed.) 151. The opinion of the court in that case tends very much to invalidate its authority.
The principle of Cocking v. Fraser, is also overruled in the case of McAndrews v. Vaughan, Marsh. (1st Am. ed.) 150, and Park 114, which goes to show, that, where a cargo consists of memorandum articles, if the voyage be lost, the assured may recover as for a total loss, though the cargo be not wholly destroyed. And there is, in fact, the same reason that the
22
1814]	OF THE UNITED STATES.	43
Marcardier v. Chesapeake Insurance Co.
breaking up of a voyage, in case of memorandum articles, should constitute a total loss, as where the cargo consists of articles not mentioned in the memorandum. The general doctrine now is, with regard to both descriptions of goods, that there may be a total loss by the breaking up of the voyage.
Dyson v. Rovicroft, 3 Bos. & Pul. 474, is another case against the principle laid down in Cociting v. Fraser. The opinion of the court here, was, that it is a total loss of memorandum articles, although they may remain in specie, if they become so much damaged as to be no longer worth carrying to the port of destination.
The next question is, whether there was a total loss *by the bar- r. ratry of the master ; and this must be decided by ascertaining who •-was the owner of the vessel for the voyage ; for it is agreed on all hands, that if the master was in a situation to commit barratry, he was actually guilty of that offence. A person may be owner for the voyage, who is not the general owner of the ship ; and barratry may be committed against such person, by the master, although the barratrous act of the master may have been done with the consent of the actual general owner. Vallejo n. Wheeler, Cowp. 143. See the same case also in Marsh. (1st Am. ed.) 454. In the case now before the court, Marcardier, the plaintiff, was owner of the vessel pro hac vice, although McDougal, the master, was the general owner. We contend, therefore, that, according to the principles laid down in the case last cited, the master was in a situation to commit barratry against the plaintiff; that he has actually done so; and therefore, that the plaintiff is entitled to recover as for a total loss.
JPinkney, contra.—It has been contended for the plaintiff, that there may be a total loss by the breaking up of a voyage, if the goods on board be deteriorated more than half. No English authority, to this effect, is recollected. The courts in New York have so decided, it is true ; but the principle may be considered as arbitrary, and the decision as local. According to Marshall (Eng. ed.), vol. 2, p. 486, if the goods insured specifically remain, and are actually landed at the port of delivery, however damaged in the voyage, the injury will amount but to a partial loss. Why, then, should the assured have a right to abandon as for a total loss, at an intermediate port, if the goods can be carried, in the same or another ship, to the place of destination ? All the authorities in favor of the right to abandon at an intermediate port, are cases where the voyage was broken up by the incapacity of the vessel to perform it. But in the present case, there was no such incapacity. The vessel *was repaired at Antigua, within a reasonable . time, at the expense of one-sixth of her value, and was capable of *■ performing the voyage, with a considerable part (at least one-third) of the original cargo. The case, therefore, is materially different from those cited on the part of the plaintiff. See Park’s observations on the cases of Cocking v. Fraser, and Dyson v. Tloiccroft, 1 Park (6th Lon. ed.) 152 ; also Manning v. Newnham (3 Doug. 130).
It is the opinion of the best judges, in cases of this nature, that the law of abandonment has already been carried far enough ; but the counsel for the plaintiff would carry it to an extent hitherto unprecedented.
With regard to memorandum articles, all the authorities go to show,
23
45	SUPREME COURT	[Feb’y
Marcardier v. Chesapeake Insurance Co.
that there must be an actual total loss, in order to justify an abandonment. A technical total loss is not sufficient. The underwriters are not liable for mere deterioration, however great, of such articles: they refuse to have anything to do with it, on account of the difficulty of knowing the real cause of such deterioration. 1 Marsh. (Eng. ed.) 227, note to the case of Cocking v. Fraser. As to memorandum articles also, the intermediate port makes no difference. In the case of Dyson v. Rowcroft, 3 Bos. & Pul. 474, there was an actual total loss. The court, in that case, do not mean to say, that memorandum articles may be subject to a technical total loss.
The alleged barratry is next to be considered. The question arising on this point is, as has been already stated, whether the master, under the circumstances of the case, could commit barratry. If he could, the facts seem to show that he was guilty of the offence. But we contend, that the master was, in fact, the owner of the vessel for the voyage, as well as general owner, and therefore, since barratry is a fraud against the owner, he could not be guilty of that offence, inasmuch as a man cannot commit a fraud against himself. The charter-party, in this case, is of a peculiar construction ; it sounds in covenant throughout; it is clearly not an assign-*. ment of the property to the plaintiff, pro hdc vice : *The master
J finds the crew, pays them, provides for them, and has the whole management of the vessel : he must, therefore, be considered as owner for the voyage. In Vallejo v. Wheeler, the charter-party is not set forth, but it is stated in the case, that the freighter employed the master and crew, and paid the crew.; the court said, it would be different, if it were not a general freighting. Here, the plaintiff was not a general freighter. Loft, who also reports the case of Vallejo v. Wheeler (Loft 641), says, that where the master employs and pays the crew, &c., the charter-party seems to be rather a covenant, and does not make the freighter owner for the voyage. McIntire v. Browne, 1 Johns. 229 ; Hallet v. Columbian Insurance Company, 8 Ibid. 272 ; Hooe v. Groverman, 1 Cr. 214.
Harper, in reply.—The question as to barratry is, who had the beneficial interest in the vessel, during the voyage. There can be no doubt, that the beneficial interest was in the plaintiff. It is of no importance, as it regards the ownership of the vessel, by whom the crew was furnished, provided for, &c. The freighting of a vessel, where the crew and other necessaries for the voyage are provided by the general owner, is merely like hiring a house, ready furnished, instead of hiring it empty, where the temporary ownership is no less in the hirer, in the former case, than in the latter.
Thursday, February 17th, 1814. (Absent, Washington, J.) Story, J., delivered the opinion of the court, as follows :—The plaintiff in this case contends, that there was a total loss, which authorized an abandonment by both of the perils stated in the declaration -viz : 1st. By the perils of the seas ; and 2d. By barratry of the master.
SJe .. And first, as to a total loss by the perils of the seas. *It seems
J now clear, that a technical total loss may arise from the mere deterioration of a cargo by any of the perils insured against, if the deterioration be ascertained at an intermediate port of necessity, short of the port of destination. In such case, although the ship be in a capacity to perform the 24
1814]	OF THE UNITED STATES.	47
Marcardier v. Chesapeake Insurance Co.
voyage, yet if the voyage be not worth pursuing, or the thing insured be so damaged and spoiled as to be of little or no value, the assured has a right to abandon the projected adventure, and throw upon the underwriter the unprofitable and disastrous subject of insurance. It has, therefore, been held, that if a cargo be damaged, in the course of the voyage, and it appear that what has been saved is less in value than the amount of the freight, it is a clear case of a total loss. It does not, however, appear that the exact quantum of damage which shall authorize an abandonment as for a total loss, has ever become the direct subject of adjudication in the English courts. The celebrated treatise Le Guidon, ch. 7, art. 1, considers that a damage exceeding the moiety of the value of the thing insured, is sufficient to authorize an abandonment. This rule has received some countenance from more recent elementary writers ; and from its public convenience and certainty, has been adopted as the governing principle, in some of the most respectable commercial states in the Union ; and perhaps, is now so generally established as not easily to be shaken. 1 Johns. Cas. 141 ; 1 Johns. Rep. 335, 406 ; Marsh. Ins. 562, note 92 (Am. edit. 1810) ; Park 194, 6th edition.
But this rule has never been deemed to extend to a cargo consisting wholly of memorandum articles. The legal effect of the memorandum is, to protect the underwriter from all partial losses •; and if a loss by deterioration, exceeding a moiety in value, would authorize an abandonment, the great object of the stipulation would be completely evaded. It seems, therefore, to be the settled doctrine, that nothing short of a total extinction, either physical or in value, of memorandum articles, at an intermediate port, would entitle the assured to turn the case into a total loss, where the voyage is capable of being performed. And perhaps, even as to an extinction in value, where the commodity specifically remains, it may yet be deemed not quite settled whether, *under the like circumstances, it would authorize an abandonment for a total loss. Dyson v. Dou-croft, 3 Bos. & Pul. «■ 474 ; Maggrath v. Church, 1 Caines 212 ; Cocking v. Fraser, Marsh. 227 ; Park 152, 6th edition.
The case before the court is of a mixed character. It embraces articles of both descriptions ; some within, and others without, the purview of the memorandum. If, in such a case, a deterioration exceeding a moiety in value, be a proper case of technical total loss, it will follow, that in many cases, the underwriter will, indirectly, be rendered responsible for partial losses on the memorandum articles. Suppose, in such a case, the damage of the memorandum articles were forty per cent, and to the other articles ten per cent., in the whole amounting to half the value of the cargo, the underwriter would be responsible for a technical, total loss, and thereby made to bear the w’hole damage, from which the memorandum meant to exempt him. Indeed, cases might arise in which the damage might exclusively fall on memorandum articles ; and if it exceeded the moiety in value of the whole cargo, might load him with the burden of a partial loss, in manifest contravention of the intention of the parties. A construction which leads to such a consequence cannot be admitted, unless it be unavoidable. And we are entirely satisfied, that such a construction ought not to,prevail. The underwriter is, in all cases of deterioration, entitled to an exemption from partial losses on the memorandum articles ; and in order to effectuate this right, it is necessary, where a technical total loss is sought to be maintained, upon the
25
48	SUPREME COURT	[Feb’y
Marcardier v. Chesapeake Insurance Co.
mere ground of deterioration of the cargo, at an intermediate port, to a moiety of its value, to exclude from that estimate all deterioration of the memorandum articles. Upon this principle, on a cargo of a mixed character, no abandonment for mere deterioration in value, during the voyage, can be valid, unless the damage on the non-memorandum articles exceed a moiety of the value of the whole cargo, including the memorandum articles. The case is considered, as to the underwriter, the same as though the memorandum articles should exist in their original sound state. In this way, full effect is
Siven to con^ract of the parties. The underwriter *is never made J responsible for partial losses on memorandum articles, however great; and the technical total losses for which alone he can be liable, are such as stand unaffected by the perishable nature of the commodity which he insures.
In the present case, the facts alleged by the plaintiff do not show a depreciation of a moiety in value, excluding the memorandum articles. There is no evidence of the quantum of depreciation of any part of the cargo. The forced sales at Antigua could not, under the circumstances, constitute a medium by which to ascertain it. Admitting, therefore, the rule to be correct, that the party had a right to abandon, where the depreciation exceeds a moiety of the value, the plaintiff has not brought himself within that rule, as applied to a cargo of a mixed character like the present. The court below were right, therefore, in deciding that there was no total loss proved by the perils of the seas.
The next question is, whether there was a total loss by the barratry of the master ? And this depends exclusively upon the consideration, who was owner of the brig for the voyage ; for it is conceded, on all sides, that the conduct of the master was barratrous, if he was in a sitnation to commit that offence. Barratry is an act committed by the master or mariners of a ship, for some unlawful or fraudulent purpose, contrary to their duty to their owners, whereby the latter sustain an injury. It follows, therefore, from the very terms of the definition, that it cannot be committed by a master, who is owner for the voyage ; because he cannot commit a fraud against himself. But it may be committed against a person who is owner for the voyage, although he may not be the general owner of the ship. A person may be owner for the voyage, who, by a contract with the general owner, hires the ship for the voyage, and has the exclusive possession, command and navigation of the ship. Such is understood to have been the case of Vallejo v. Wheeler, Cowp. 143. But where the general owner retains the possession, command and navigation of the ship, and contracts to carry a cargo on freight, for the voyage, the charter-party is considered as a mere affreightment, sounding in covenant, and the freighter is not clothed with the char-acter *or legal responsibility of ownship ; such was the case of Hooe
J v. Groverman, in this court (1 Cr. 214). In the first case, the general freighter is responsible for the conduct of the master and mariners during the voyage ; in the latter case, the responsibility rests on the general owner. On examining the charter-party in the present case, there can be no doubt, from the terms and stipulations, that it falls within the latter class of cases. The master, who was the general owner, retained the exclusive possession, command and management of the vessel, and she was navigated at his expense during the voyage. The whole charter-party, except the introduc-26
1814]	OF THE UNITED STATES.	50
Hall v. Leigh.
tory clause, sounds merely in covenant. The ownership was not divested by the covenant of affreightment, and consequently, the master was incapable of committing barratry. There was, then, no total loss on the second count in the declaration.
The opinion of the circuit court on this exception must be sustained. But there are other exceptions on the record, in which it is admitted by the parties that the circuit court erred. The points intended to be raised in these exceptions have, in effect, being decided by this court in Gaze and Bichaud v. Baltimore Insurance Company, at February term 1813. (7 Cr. 358.) For the errors in these exceptions, the judgment must be reversed, with directions to.the circuit court to award a venire facias de novo.
Judgment reversed.
Hall v. Leigh et al. (a)
Principal and factor.
If two joint-owners of merchandise consign it to a merchant for sale, and inform him that each owns one moiety; and if they give separate and variant instructions, each for his own moiety; one of the consignors alone may maintain a separate action against the consignee, for a violation of his separate instructions.
This case is so fully stated in the opinion of the court that it is deemed unnecessary to add more than that Harper and Pinkney, for the plaintiff in error, did not argue the case, as there was no appearance for the defendants in error, but simply stated, that they contended that the separate instructions of each owner severed the joint interest, and cited 1 Esp. 117, and Watson on Partnership 233-34.
*February 18th, 1814. Livingston, J., delivered the opinion of the court, as follows :—This cause comes here on a writ of error to the Circuit Court of the United States for the district of Maryland. This action was brought by the plaintiff, who was also plaintiff below, to recover the proceeds of one hundred bags of cotton, which had been shipped to the defendants, and by them sold on commission.
At the trial, it appeared, that the plaintiff, together with William Potts & Co., in 1807, made a joint shipment of two hundred bales of cotton to the address of the defendants, who resided at Liverpool, to make sale thereof for their joint benefit. This cotton belonged, one-half to the plaintiff, and the other half to William Potts & Co. The shipment was accompanied by two letters to the defendants, the one written by the plaintiff, bearing date 14th February 1807, in which, after advising them of the shipment, he adds, “ Mr. Potts has written you on the subject of his interest in this adventure ; for myself, I have to request that you will, after covering me in cost and charges, make such disposition of my one-half the shipment as your own-judgment may think best for my interest.”
The other letter was written by William Potts & Co., and is dated 5th February 1807, in which they also advised the defendants of the shipment which they say is “ for account of Mr. Hall and ourselves, each one-half,” and after directing what is to be done with their moiety, they observe, that
(a) February 12th, 1814. Absent, Washington, Justice.
27
01	SUPREME COURT	[Feb’y
Alexandria v. Preston.
“ under present circumstances, Mr. Hall will decline drawing on his proportion, as he wishes you to avoid selling at the present prices, as long as possible ; we refer you to him for more particular directions.”
In another letter of the 13th April, 1807, the plaintiff directed the defendants that, after affecting sales of his half of the cotton, on the terms of his first letter, “they should pass the net proceeds of his proportion to the * , credit of Messrs. W. Potts & Co., and furnish him *with sales and
■* account-current, as soon as possible, to enable him to settle with those gentlemen here.”
After the receipt of these letters, the defendant, on the 5th June 1807, sold one hundred bags of the cotton on account of‘William Potts & Co., at 17c?. sterling per pound, and immediately advised them thereof. The defendants afterwards, that is, on the 31st December 1807, had the remaining one hundred bags of cotton valued at 14c?. sterling per pound, at which price they took it to themselves, and carried the amount to the credit of William Potts & Co., and on the 1st March following, sold them at a higher price. The plaintiff, thinking the defendant, guilty of a breach of orders, brought this action to recover damage, and on the preceding evidence, the circuit court was of opinion, that he could not separately maintain an action against them, on which a verdict and judgment passed against him.
Although the purchase of this cotton was on the joint account of the plaintiff, and of William Potts & Co., yet as, in its shipment to the defendants, their distinct interests were not only disclosed, but as separate and variant instructions were given as to the disposal of it, and as, under these directions, the defendants acted throughout the whole of their agency in this business, it is not easy to perceive on what ground they now allege that they can be liable only in a joint action in the names of the present plaintiff, and of William Potts & Co. By their own conduct, they have precluded themselves from every objection of this nature, for they have contracted, as to the one-half of this property, with the plaintiff, and as to the other moiety, with William Potts & Co., and it will be seen by a recurrence to the testimony, not only that their engagements with these parties are distinct, but of different kinds. In selling the proportion of W. Potts & Co., they had a discretion, but over the other they had no right to sell for less than cost and charges. This court, therefore, is of opinion, that the action was well brought, and that the judgment of the circuit court was erroneous and must be reversed.
Judgment reversed.
*53] *Common Council of Alexandria v. Preston, (a) Liability for taxes.
A purchaser of real estate, in Alexandria, is not personally liable for arrears of taxes, assessed before his purchase.
Error to the Circuit Court for the district of Columbia, sitting at Alexandria.
This was amotion in the court below, for judgment and execution against
(a) February 18th, 1814. Absent, Washington and Johnson, Justices. 28
1814]	OF THE UNITED STATES.	53
Alexandria v. Preston.
Preston (under the 11th section of the act of congress of 25th of February 1804, “to amend the charter of Alexandria,” 2 U. S. Stat. 259), for taxes due to the corporation for the years 1804, 1805 and 1806, on a lot of ground in Alexandria, which Preston purchased of Scott, in the year 1807, after the taxes were due. The assessors’ books were returned on the 1st of May, in every year, to the office of the clerk of the common council, where they remained subject to public inspection.
The court below, being of opinion, that the summary remedy by motion, judgment and execution, was given only against the person who was proprietor at the time of the assessment of the taxes, dismissed the motion ; and the common council brought their writ of error.
The 11th section of the act to amend the charter of Alexandria is as follows : “ Be it further enacted, that whenever taxes upon real property, or other claims charged upon real property within the town, shall be due and owing to the common council, and the proprietor shall fail to discharge the same, the said common council, after giving the party reasonable notice, when he resides in town ; sixty days’ notice, when he resides out of the town and in the United States ; and after six months’ publication in the newspapers, when he resides out of the United States ; shall be empowered to recover the said taxes or debts, by motion, in the court of Alexandria ; and provided it shall appear to the satisfaction *of the court, that such taxes or claims are justly due, judgment shall be granted and an execution L shall issue thereupon, with the costs of suit, against the goods and chattels of the defaulter, if any can be found within the town ; if not, that the whole property, upon which the tax or claim is due, shall, by order of the court, be leased out at public auction, for the shortest term of years that may be offered, on condition that the lessee pay the arrearages, and also the future taxes accruing during the term, and be at liberty to remove all his improvements at the expiration of the lease ; provided always, that the common council may prosecute any other remedy, by action, for the recovery of the said taxes and claims which is now possessed or allowed.”
E. J. Lee, for the plaintiff in error.—The question arising upon this case is, whether the proprietor, for the time being, of a lot in Alexandria, is personally liable to a judgment and execution for arrearages of taxes assessed upon the lot, before he became the proprietor thereof ?
The act of congress gives a remedy, by motion, judgment and execution, against the proprietor who shall fail to discharge the taxes. Preston was the proprietor, at the time or the demand of payment, and has failed to pay. He is, therefore, within the express letter of the law. “The defaulter” also is the person who has failed to pay on demand ; the person who was liable to pay, when the demand was made upon him. Every proprietor of the land is liable for its taxes, so long as he is proprietor. The claims, according to the words of the act, are charged upon the real property. They accompany the land into whose hands soever it may pass. The law was intended to give a remedy against any proprietor of the land. The taxes are placed on the same footing as other charges which are liens on the land. It is not a case of greater hardship than that of other liens on real estate. Caveat emptor is the rule, where he has the means of knowledge : here, the
29
54	SUPREME COURT	[Feb’y
Pleasants v. Maryland Insurance Co.
assessors’ books were always accessible. The purchaser is bound to take notice of the non-payment of the taxes ; he purchases at his peril.
* Swann, contra.—The statute uses the definite article, the proprie-
J tor.” The question is, which proprietor? Scott or Preston? We say, it means him who was proprietor when the tax was laid, and in whose name the land was assessed, and who was unquestionable liable, in the first instance. He was “ the proprietor ”—“ the defaulter ” contemplated by the legislature. If he was liable, did his liability cease when he sold the land ? or is he still liable ? There is nothing in the law to justify an idea, that the legislature contemplated a succession of proprietors who should be successively liable; a succession of debtors ; nor that they should be all liable at once ; nor that the corporation should have its choice out of the several successive proprietors. It suggests the idea of one proprietor only, and of one debtor or defaulter only ; and if but one, it can be no other than him who was confessedly liable—him who was proprietor at the time of the assessment. The tax is a lien on the lot so far as to authorize the court to direct it to be leased out to any one who will pay the taxes, in case the goods and chattels of the debtor cannot be found.
The books of the assessor and collector are not matter of record. The purchaser has no right to inspect them. The tax is a secret lien.
February 19th, 1814. The Court affirmed the judgment, without assigning their reasons.
Judgment affirmed.
Pleasants v. Maryland Insurance Company, {a)
Marine insurance.— Valuation.
When a cargo is insured by diverse polices, in some of ^yhich the rate of exchange is fixed, at which the prime cost of the cargo shall be valued; in ascertaining the amount of the interest of the assured, upon settlement of those policies in which the rate of exchange is fixed, the whole cargo is to be valued at that rate of exchange, without regard to the rate of exchange by which the value may have been ascertained in the other policies.
Error to the Circuit Court for the district of Maryland, in an action upon a policy of insurance, dated on the 18th of May 1810, on the cargo of the brig Elizabeth, from St. Petersburg or Cronstadt, to Philadelphia, against all risks, for $6000, “ valuing *the invoice ruble at 46 cents.”
J The invoice amounted to 95,565.71 rubles, equal, at 46 cents per ruble, to $43,960.23.
Before this policy was made, the plaintiff had effected eight other policies in Philadelphia, to the amount of $36,900. In the first seven of these policies, there was no valuation of the ruble ; but in the eighth, it was valued at 40 cents. The defendants, at the time of executing this policy, had no knowledge of those affected in Philadelphia.
The vessel and cargo were captured by a Danish vessel and condemned. The plaintiff abandoned in due time. The underwriters at Philadelphia paid. But on settlement of the seven first policies, in which the value of
(a) February 12th, 1814.
30
1814]	OF THE UNITED STATES.	56
Pleasants v. Maryland Insurance Co.
the ruble was not fixed, and which insured $29,000, the underwriters, in order to ascertain whether the plaintiff’s interest in the cargo amounted to the sum insured by those policies, viz., $29,900, insisted upon fixing the value of the ruble at thirty-three and a third cents.
On settlement of the eighth policy, which valued the ruble at forty cents, and which insured $7000, the calculation (in order to ascertain whether the plaintiff had still a sufficient interest left to entitle him to receive the $7000 insured by that policy) was made, by converting the whole amount of the invoice into dollars at 40 cents per ruble, and deducting therefrom the $29,900 received upon the seven preceding policies. By this mode of calculation, it appears (according to the statement in the bill of exceptions which, however, does not seem to be accurate), that after the plaintiff had received the $29,900 insured by the seven first policies, and the $7000 insured by the eighth policy, his remaining interest to be covered by the ninth policy, was only 1481.74 rubles, equal, at 46 cents per ruble, to $682 58.
But if, on settlement of this last policy, the plaintiff is entitled to have the value of his interest in the cargo ascertained by converting the whole amount of the invoice *into dollars, at the rate of 46 cents per ruble, [-*57 and, deducting therefrom the $36,900 covered by the eight prior *• policies, then his remaining interest to be covered by this policy would be more than the $6000 insured thereby.
The only question saved by the bill of exceptions at the trial below, was whether the plaintiff should recover according to the latter mode of calculation. The plaintiff contended for the latter, but the court overruled him, and directed the jury that he was only entitled to recover according to the former ; they found a verdict accordingly ; whereupon, the plaintiff brought his writ of error.
The point was now submitted to the court, without argument, by Harper, for the plaintiff in error, and Jones and Pinkney, for the defendant.
February 21st 1814. (All the judges being present.) Johnson, J., delivered the opinion of the court, as follows :—This is the case of an insurance on a voyage from St. Petersburg or Cronstadt to Philadelphia, effected in the year 1810 ; the vessel was captured and the assured abandoned. The only difficulty arises on the principles upon which the loss shall be adjusted.
Besides this policy, eight others were effected in Philadelphia. In seven of them, no valuation was attached to the ruble; in the eighth, it was valued at 40 cents, and on this, which was the ninth in order, at 46 cents. In settling the first seven, the ruble was estimated at thirty-three and a third cents, which was the received value at Philadelphia ; on the eighth, it was settled at the stipulated value of 40 cents. The value of goods laden on board the ship was proved to be 95,565 rubles. The sum paid on the first eight policies corresponded to the adjusted value of 94,084 rubles, leaving a balance of only 1481, equal, at 46 cents, to about $682 unpaid. But if the whole amount of *the cargo be brought into dollars at 46 cents to the ruble, and the sum in dollars actually paid on the other. *-policies be deducted, there will still remain more unpaid than would exhaust the whole sum underwritten on the ninth policy.
On the part of the defendant, it is contended, that the compensation paid to the plaintiff on the other policies, is absolute and complete as to the cor-
31
58	SUPREME COURT	[Feb’y
Pleasants v. Maryland Insurance Co.
responding amount in rubles, leaving only 1481 unpaid. On the other hand, the plaintiff contends, that the compensation was only relative, and cannot affect his rights as between himself and this defendant. And of this opinion, is the majority of the court.
The object to be attained is, to secure to the assured a fair indemnity under all the advantages which he has purchased of the insurers. The intention of the parties, in attaching a fixed value to the ruble, appears in the order for insurance, to wit, “ to distinguish between the paper and specie ruble.” It is very well known, that the ruble is the money of account in Russia; it was originally a coin corresponding in value to the American dollar ; but by the forced circulation of a paper representative of the ruble, dependent on nothing but mere national faith or national force for its value, the silver ruble has nominally doubled or trebled itself in value. The astonishing and rapid fluctuation in its value appears from the evidence in this case, in which it is stated that in the year 1810, it varied from forty-eight to twenty-five cents. To secure the assured against the effects of this fluctuation, was the object of the parties in attaching a specific value to the ruble ; and as the whole cargo would be affected in value by this cause, and the policy was upon the cargo, generally, we are of opinion, that no other principle in calculating the loss, would afford him the indemnity stipulated for in the policy. The principle contended for by the defendant is subject * to this obvious objection, that it is not reciprocal. *Had the adjust-
■* ment of the value of the ruble in the other cases exceeded forty-six cents, that adjustment would not in any respect have resulted to his benefit.
There is one difficulty of which the court are fully aware, which is, that the interest assigned in the abandonment, if estimated in rubles, will be inversely as the rate at which the ruble is estimated, so that he who pays most would acquire least. But in this case, the objection does not arise ; as the plaintiff, by a compromise with the underwriters on some of the other policies, has reserved a sufficient interest in the subject of abandonment, to meet the just claims of these underwriters. And in no ease would this consideration create a difficuly as between the parties to a policy. Among the underwriters alone, in the distribution of the proceeds of the thing abandoned, would it be necessary to determine on the correct rule to be applied in such a case.
Had the policy, which is the subject of this suit, been a valued policy, and declared the value of the whole cargo to be 843,929, the actual amount at the stipulated valuation of the ruble, the same objection would have presented itself, but certainly would not have availed to prevent a recovery. The judgment below must, therefore, be reversed, and the case remanded.
Judgment reversed.
32
1814]
OF THE UNITED STATES.
59
McCall et al. v. Marine Insurance Company.
Marine insurance.—Loss by blockade.
If a policy insures against “ unlawful arrests, restraints and detainments of all kings, princes,” &c., the qualification, “ unlawful,” extends in its operation as well to “ restraints and detainments ” as to “ arrestsand in such case, a detainment by a force lawfully blockading a port, is not a peril insured against, by a policy containing a warranty of neutrality.
Error to the Circuit Court for the district of Maryland. This was an action on a policy underwritten by the defendants, upon all kinds of lawful goods and merchandise, on board the ship Cordelia, on a voyage from the Island of Teneriffe, to Surabaya, and at and from *thence to Philadel-phia, warranted American property.	L
The ship sailed on the voyage, on the 5th of April 1811, having on board a cargo of lawful goods, the property of the plaintiffs, of the value of $15,000, and pursued the voyage until the 18th of July following, when, being in a place called Madura Bay, within about twelve hours’ sail of Surabaya, she was boarded by an officer of a British frigate, forming one of a squadron, then actually blockading the port of Surabaya, and all the other ports of the islands of Java and Madura. The frigate took possession of the Cordelia, and conducted her to the admiral commanding the blockading squadron, who, on the next day, dismissed the Cordelia, after indorsing her papers, and warning the master not to enter the port of Surabaya, or any other port in the island of Java, or of the island of Madura, on pain of capture.
On the same day, the Cordelia made another attempt to enter Surabaya, but was chased by the same British frigate, and taken possession of a second time. After being detained two days, the Cordelia was again released, and the master was ordered to depart instantly from the coast of Java, and the neighborhood of Surabaya, upon penalty of capture, and impressment of his men. The master, finding it impracticable to pursue his voyage further, resolved to return to Philadelphia, where he arrived on the 19th of November 1811. At the time of sailing on the voyage from Teneriffe, the blockade of Java was unknown to the parties.
The plaintiffs abandoned to the defendants, immediately after the arrival of the Cordelia at Philadelphia, which gave them the first knowledge of the occurrences. The defendants refused to accept the abandonment.
The policy contained the usual risks, except that the word “ unlawful,” was printed before “ arrests,” so that the clause stood, “ unlawful arrests,, restraints and detainments of all kings, princes or people of what nation, condition or quality soever.” The declaration alleged, that the ship and cargo were, during the voyage, “by persons acting under the authority of the British government, and by a certain ship of war belonging to that government, unlawfully seized, restrained and detained,” and thereby become totally lost. The circuit court directed the jury, that on this *state of facts, the plaintiffs were not in law entitled to recover; to which *-the plaintiffs excepted, and brought this writ of error.
Harper, for the plaintiffs, insisted, that this direction was erroneous ; because the voyage was broken up, and lost. 1st. By men of war; 2d. By detention of princes ; the blockade having prevented the accomplishment of the voyage. That the plaintiffshad, therefore, a right to abandon, and
8 Cranch—3	33
6]	SUPREME COURT	[Feb’y
McCall v. Marine Insurance Co.
were entitled to recover for a total loss. In support of his argument, he cited the case of Barker v. Blakes, 9 East 280, cited also in 2 Marshall 835, Appendix.
Jones, contra.—This case is very distinguishable from that of Barker v. Blakes. 1st. In that case, the voyage was interrupted as to the ultimate and only port of destination. Here, there was an interruption as to an intermediate port only, which cannot, we contend, constitute a total loss. The adventure from Teneriffe to Philadelphia might have been as profitable as the accomplishment of the whole voyage. Another distinction between the two cases arises from the different phraseology employed in the respective policies. The English policy employs general words, so as to include any detention of princes, &c. Here, the policy is limited to unlawful detention of princes, &c. Unless, therefore, this detention can be shown to be unlawful, the case is not within the policy ; and it is clear, that it was not unlawful, unless the blockade was so. But this is not contended; the blockade was maintained by an adequate force, and was in every respect *621 conformable to the law of nations. * Again, in the case of Barker v..
J Blakes, the blockade of Havre was not considered as the cause of the •destruction of the voyage ; the detention in Bristol was the only ground of loss. Here, on the contrary, the blockade is the sole ground of abandonment.
The abandonment itself, in the case now before the court, is liable to objection. An abandonment, to be valid, ought to be made during the impediment that causes the loss. But in this case, the abandonment was ¡not made, until long after the impediment had ceased.
Pinkney, on the same side.—It was contended by the defendants, in the .court below, that they were not liable for the loss in this case, 1st. Because, .under the words of the policy, that loss did not arise from any peril insured ; against. 2d. Because the plaintiffs had violated their warranty of neutrality. • 3d. Because, at the time when the abandonment was made, the property was not under the restraint of princes. The same grounds of defence are mow relied upon.
And first, as to the words of the policy. This instrument insures against “ unlawful arrests, restraints and detainments of all kings,” &c. The word <e unlawful ” is that which the defendants consider as taking the present case out of the policy. This word is not inserted in the English policies, but has been introduced into those of the Marine Insurance Company and some other American offices. Some meaning must be given to the term, and that can be no other than the most usual meaning ; so that unless it can be made to appear, that the detainment in this case was unlawful, the defendants cannot be considered as liable. But, as has been said before, the blockade, which was the cause of the detainment, was lawful; the detainment itself was, therefore, lawful, under the acknowledged law of nations.
*631	tbe warranty of neutrality. When the voyage was
■■ J undertaken, and the policy underwritten, neither party knew that the port of destination was blockaded ; but the underwriters protected themselves by a warranty of neutrality, and the assured consented to give it. The import of the warranty is, that the voyage shall be performed in a
34
1814]
OF THE UNITED STATES.
McCall v. Marine Insurance Co.
63
neutral manner ; and consequently, that if the vessel should find the port blockaded, she will discontinue the voyage. She does find it blockaded ; and not only physical force, but the law of nations and the warranty oblige her to forbear the completion of the voyage. She nevertheless attempts to enter the port, and that, too, after being warned off by the admiral commanding the blockading squadron. Has the assured, in such a case, a right to set up the non-compliance with his own warranty, as the foundation of a total loss, or of any loss ? With such a warranty in the policy, can the underwriter be considered as engaging that, if the port of destination should be found blockaded, the voyage shall be completed ? If such is his engagement, then he stipulates that the vessel shall violate the warranty ; because, without a violation of it, she cannot reach her port of destination, if she finds it blockaded. It is plain, that his undertaking is only for a neutral voyage ; and therefore, that the moment it becomes unneutral, the policy is discharged, by force of the warranty acting upon the whole contract.
Cases upon the British orders in council are far less strong than this ; for they made no blockade acknowledged by the law of nations. Physical force was there everything ; and neutral duties were not affected by them. But here, the neutral obligations of the vessel turn her back, and intercept her path, and extract the case out of the policy.
3d. Here was no restraint of princes. Restraint must be physical ; and an abandonment, to be of any avail, must be made during such restraint. In the present case, the physical restraint continued but one day ; all afterwards was mere moral restraint, arising from the threat of capture and confiscation as prize of war. But *an apprehension, though just and . reasonable, is not sufficient to justify abandonment. Iladkinson *-v. Bobinson, 3 Bos. & Pul. 392 ; 5 Esp. Ca. 50; Blankenhagen v. London Assurance Co., 1 Camp. 454. See also, the case of Bichardson v. Maine Ins. Co., 6 Mass. 118, where the court decided, that apprehension alone would not justify an abandonment; and also, that if the master, after being once warned off, had made another attempt to enter the blockaded port, it would have been barratry.
Harper, in reply.—1st. With regard to the wording of the policy. It is unnecessary to examine what, effect the term, “unlawful,” may have upon the subsequent words, inasmuch as the declaration states the loss to have been occasioned by men of war, with which the word “ unlawful ” had no connection. But if such examination be made, it will appeal’ that this term applies only to.the word “ arrests,” .which, in the original printed form of the policy, was separated from the following part of the sentence by a comma, and was, therefore, the only word qualified by the preceding term “ unlawful.” The pointing of the sentence was the act of the parties, and, as such, material, and as much a part of the contract as the words themselves.
2d. As to the violation of the warranty of neutrality. The loss was complete, before the second attempt to enter the blockaded port; and therefore, could not have happened by reason of that attempt ; consequently, the right of the plaintiffs to recover, could not be affected by that or any other act of the master, subsequent to the original loss, however inconsistent with neutrality that act might be.
35
64.	SUPREME COURT	[Feb’y
McCall v. Marine Insurance Co.
3d. With regard to the time of abandoning : the plaintiffs abandoned, immediately after the arrival of the Cordelia at Philadelphia, which gave them the first information of the loss. To have expected, them to abandon, before they knew anything of the loss, would have been absolutely inconsistent with reason.
The cases cited from Bos. & Pul. and the Mass. R., are essentially different from the present, inasmuch *as in those cases, there was no *65J physical force to prevent the prosecution of the voyage. Park 226 (6th ed.), Blankenhagen v. London Assurance Company.
Monday, February 21st, 1814. (Present, all the judges.) Stoey, J., after stating the facts of the case, delivered the opinion of the court, as follows :—The court below, at the trial, held that the plaintiff, under the circumstances, was not entitled to abandon as for a total loss ; and the correctness of that opinion remains for the decision of this court.
Whether the turning away of a. ship from, the port of destination, in consequence of a blockade, be, in any case, a good cause for abandonment, so as to entitle the assured to recover from the underwriter, as for a total loss, by the breaking up of the voyage ; and if so, whether the doctrine could apply to a policy, with a warranty of neutrality, the legal effect of such warranty being to compel the party to abandon the voyage, if it cannot be pursued consistent with neutrality, are questions of great importance, upon which the court do not think it necessary to express any opinion, because this cause may well be decided upon an independent ground.
The loss of the voyage, in the case at bar, was occasioned (if at all) by the arrest and restraint of the British blockading squadron. The right to blockade an enemy’s port with a competent force, is aright secured to every belligerent by the law of nations. No neutral can, after knowledge of such ' blocakde, lawfully enter, or attempt to enter, the blockaded port. It would be a violation of neutral character, which, according to established usages, would subject the property engaged therein to the penalty of confiscation. In such a case, therefore, the arrest and restraint of neutral ships attempting to enter the port, is a lawful arrest and restraint by the blockading squadron. It would follow, therefore, from this consideration, that the arrest and restraint, on account of which a recovery is now sought, is not a risk within the policy, against which the underwriter has engaged to indemnify the plaintiff.	.	.
, *But it is contended by the counsel for the plaintiff, in order $$ to escape from this conclusion, that the word “unlawful, in the policy, is confined in its operation to arrests, and does not extend to' “ restraints and detainments.” To this construction, the court cannot assent. The grammatical order of the words and the coherence of the sentence require a different construction. It is not against every “ unlawful arrest that the underwriter undertakes to indemnify, but against “ unlawfu arrests, &c., of all kings, princes and people,” which have always been held to mean the arrests of kings, princes or people, in their sovereign an national capacity, and not as individuals. The necessary connection of the sentence, therefore, requires that “ arrests, restraints and detainments, should be coupled together ; and if so, the qualification of unlawf ul must be annexed to them all. The intent of the parties also urges to the same
36
1814]	OF THE UNITED STATES.	66
Smith v. Edrington.
conclusion ; for every arrest is a restraint and detainment; and it would be strange, if the party could, under the allegation of a restraint, recover a loss from which the underwriter is expressly exempted by an unambiguous exception in the policy. On the whole, the court are of opinion, that the judgment of the circuit court must be affirmed.
Judgment affirmed.
Smith and others v. Edrington. (a)
Wills.—After-acquired lands.
Under the statute of Virginia respecting wills, it is necessary, in order that lands acquired after the date of the will, may pass by the will, that the intention of the testator should clearly appear upon the face of the will.
This was an appeal from the Circuit Court for the district of Virginia, sitting in chancery. The bill sought to charge the lands of Christopher Edrington, in the hands of his son and heir-at-law, W. P. Edrington, with a debt due by his father, Christopher Edrington, to the complainants, by simple contract.
It was contended, that the lands passed, by the will of Christopher Edrington, to his son, W. P. Edrington, charged with the payment of the debts of the testator, *although the lands were acquired by the testator after the date of the will. The will expressed a desire that all the L just debts of the testator should be paid by his executors, as soon as the means in their power should pernfit. It also authorized his executors to dispose of and convey any of his property that might be necessary for payment of his debts ; and afterwards, it had these expressions, “ should my son, William P. Edrington, to whom I bequeath the whole of my property, after the payment of my debts, and provisions above made, die under the age of twenty-one "years, I then give,” &c. The testator then proceeded to make certain pecuniary bequests, in the event of his son’s so dying, and concluded, by disposing of the residue of his property.
At the date of the will, the testator had no lands. Those which the bill sought to charge were purchased a short time before his death.
By an act of the legislature of Virginia, in force at the date of the will (1 Rev. Co. P. P. 160), it is enacted, “ that every person, aged twenty-one years and upwards, being of sound mind, and not a married woman, shall have power, at his will and pleasure, by last will and testament in writing, to devise all the estate, right, title and interest in possession, reversion or remainder, which he hath, or, at the time of his death, shall have, of, in or to lands,” &c.
The court below dismissed so much of the complainants’ bill as sought to charge the lands, in the hands of the heir, and they appealed to this court.
E. J. Lee, for the appellant.—The only question in this case is, whether the lands passed by this will to the devisee, W. P. Edrington. For if they did, he took them subject to the debts of his father, by the terms of the will. By the statute, they would pass, if such was the intention of the tes-
(«) February 9th, 1814. Present, all the judges.
37
*68	SUPREME COURT	[Feb’y
Smith v. Edrington.
tator. *That such was his intention, is to he inferred from the following facts which appear in the case :
It is evident, from the will, that he meant to dispose of his whole estate ; and that his just debts should be paid, at all events. He bequeaths to his son, his whole property, after payment of his debts, and certain specific legacies. In the summer of 1803 or 1804, the testator offered to convey this land in payment of his debt to the complainants, which shows that he looked to the land as a fund for that purpose, and that he did not mean to cheat his creditors, by converting his personal estate into lands. The intention of the testator is to be collected not only from the words of his will, but from his acts. Kennon v. McRoberts, 1 Wash. 96 ; Shermer v. Shermer, Ibid. 266.,
Taylor, contrA,.—Under the statute of Hen. VIII. (of wills), it has always been holden, in England, that no after-purchased lands can pass by a will. This will must have the same construction as if the devise had been to a stranger, instead of the heir-at-law. It must have been the intention of the testator, at the time, to devise what he had, not what he had not. It does not appear, that he even contemplated a purchase of lands. Under the first part of his will, it is clear, that he alludes only to personal estate. In the case of Hamer sly v.-------, 3 Call 289, it is said by the court of appeals of
Virginia, that the intention to devise after-acquired lands must appear by expressions applicable to that kind of property.
February 23d, 1814. Washington, J., delivered the opinion of the court, as follows :—This was a bill hied on the equity side of the circuit court for the district of Virginia, by the appellants, in order to charge the real estate of Christopher Edrington, in the hands of his son and heir-at-law, William P. Edrington, with the payment of a debt due to the appellants * , *by Christopher Edrington, the father. The appeal being taken from
J that part of the decree of the circuit court which dismissed the bill so far as it seeks to subject the real estate in the hands of Wm. P. Edrington to the payment of the appellants’ demand, the only question now to be considered is, whether the will of Christopher Edrington can be so construed as to charge his real estate with the payment of his debts ?
The clauses of the will relied upon by the appellants’ counsel for this purpose, are that which expresses the desire of the testator that all his just debts should be paid by his executors, &c., so soon as the means in their power should permit; also, another, which authorizes his executors to dispose of and convey any of his property that might be necessary for payment of his debts ; and a third, which is still stronger, and is expressed as follows : “ Should my son, William P. Edrington, to whom I bequeath the whole of my property, after the payment of my debts and provisions above made, die under the age of twenty-one years, I then give,” &c. The testator then proceeds to make certain pecuniary bequests, in the event of his son’s so dying, and concludes by disposing of the then residue of his property.
At the time that this will was made, it is admitted, that the testator was not possessed of or entitled to any estate in land, but that, afterwards, and a short time previous to his death, he purchased the tract of land which this bill seeks to charge. By an act of the legislature of Virginia, passed in the year 1785, and long before the date of this will, it is declared, “that any person, aged twenty-one years and upwards, being of sound mind, and not a
38
1814]	OF THE UNITED STATES.	69
Beale v. Thompson.
married woman, shall have power, at his will and pleasure, by last will and testament in writing, to devise all the estate, right, title and interest, in possession, reversion or remainder, which he hath, or, at the time of his death, shall have, of, in or to lands,” &c. The circumstance, therefore, that the land in question was acquired after the execution of the will, presents no difficulty in this case, if it appears that it was the intention of the testator to devise it to his son; because if it passes at all under the will, it may readily be admitted, that the devisee took it subject to the payment of the testator’s debts ; the parts of the will above recited being ^strong to impose such a charge.	*-
But although a testator may, under the above law, dispose by will of after-puchased lands, it is nevertheless necessary that his intention to make such a disposition should clearly appear upon the face of the will. The rule in England, as well as in Virginia, at the time this law was passed, was, that a will, as to land, speaks at the date of it, and as to personal estate, at the time of the testator’s death. The law created no new or different rule of construction, but merely gave a power to the testator to devise lands which he might possess, or be entitled to, at the time of his death, if it should be his pleasure to do so. The presumption is, that the testator means to confine his bequests to land to which he is then entitled ; and this presumption can only be overruled by words clearly showing a contrary intention.
In this will, there are no expressions which indicate an intention to devise, or in any manner to charge, lands which the testator might afterwards acquire. It does not appear, that the testator contemplated, at the time he made his will, the purchase of any land, and the words, “ estate ” and “ property,” to be found in it, may be fully satisfied, by applying them to the personal property of which he was possessed. It is, therefore, the opinion of the court, that there is no error in the decree of the circuit court, and that the same ought to be affirmed, with costs.
Judgment affirmed.
Beale u Thompson and Morris, (a)
Deposition de bene esse.
It is a fatal objection to a deposition taken under the judiciary act of 1789 § 30, that it was opened out of court.
Error to the Circuit Court for the district of Columbia.
On the trial in the court below, the defendant, Beale, offered in evidence, the deposition of Tunis Craven, taken before the judge of the district court of the United States for the district of New Hampshire, under the 30th section of the judiciary act of September 24th, 1789 (1 U. S. Stat. 88), which, after prescribing the mode of taking depositions, directs that “the r*)-1 depositions so taken shall be retained by such magistrate, until he L deliver the same, with his own hand, into the court for which they are taken ; or shall, together with a certificate of the reasons aforesaid of their being taken, and of the notice, if any, given to the adverse party, be, by him, the said magistrate, sealed up and directed to such court, and remain under his seal, until opened in court.”
(a) February 18th, 1814. Absent, Washington and. Johnson, Justices.
39
71	SUPREME COURT	[Feb’y
Clementson v. Williams.
The deposition was sealed up by the judge, but directed to the clerk of the court, and he, supposing it to be a letter respecting his official business, opened it out of court. The court below rejected the deposition ; which being stated in a bill of exceptions, the defendant, Beale, brought his writ of error.
The question respecting the informality of opening the deposition out of court, was not argued in this court, there being another objection to it, which the counsel deemed more important, viz., that the deponent was the maker of the note upon which the suit was brought against the defendant, Beale, as indorser ; the purport of the deposition being to show that Beale had not due' notice of the non-payment of the note by the deponent.
Law and Jones, for the plaintiff in error.: Morsell, for the defendants: in error.	,
February 23d, 1814. Story, J., delivered the opinion of the court, as follows :—The single point in this case is, whether the circuit court of the district of Columbia, erred in rejecting the deposition of Tunis Craven ?
Independent of all other grounds, the court are of opinion, that the fact of the deposition’s not having been opened in court, is a fatal objection. The statute of 24th September 1789, ch. 20, § 30, is express on this head. The judgment of the circuit court must be affirmed.
Judgment affirmed.
*72]	*Clementson v. Williams. («)
Statute of limitations.
An acknowledgment of the original justice of a claim, is not sufficient to take the case out of the statute of limitations; the acknowledgment must go to the fact, that it is still due.1
The statute of limitations is entitled to the same respect as other statutes, and ought not to be explained away.1 2
Qutere ? Whether an acknowledgment by one partner, after dissolution of the partnership, is sufficient to take a case out of the statute of limitations ?3
Error to the Circuit Court for the district of Columbia, sitting at Alexandria. The facts of the case are thus stated by the Chief Justice, in delivering the opinion of the court : The plaintiff instituted a suit against James Williams and John Clarke, merchants and partners trading under the firm of John Clarke & Co. The writ- was executed on Williams only, who pleaded non assumpsit and the act of limitations, on which pleas, issues were
(a) February 14th, 1814. Absent, Washington, J.
1 To take a case out of the statute, there must be an express unqualified acknowledgment of a subsisting debt. Bell v. Morrison, 1 Pet. 351; Moore i>. Bank of Columbia, 6 Id. 86; Read v. Wilkinson, 2 W. C. C. 514; Kamp-shall v. Goodman, 6 McLean 189; Jenkins v. Boyle, 2 Cr. C. C. 120; Cross v. United States, 4 Ct. Claims 271; McClelland v. West, 59 Penn. St. 487; Purdy v. Austin, 3 Wend. 187.
2McCluny v. Silliman, 3 Pet. 270; United
40
States v. Wilder, 13 Wall. 254.
3 It is now well settled, that an acknowledgment and promise to pay, made by one of several partners, after a dissolution, will not revive a debt against the firm, which is bound by the statute of limitations. Bell v. Morrison, 1 Pet. 351; Van Keuren v. Parmelee, 2 N. Y. 523; Reppert v. Colvin, 48 Penn. St. 248. But a partial payment by a liquidating partner will have such effect. Homer v. Irvine, 3 W. & S. 345; Kauffman v. Fisher, 3‘ Grant (Pa.) 302.
1814]	OF THE UNITED STATES.	72
Clementson v. Williams.
joined. The jury found that the defendant did not assume ; and judgment was rendered in his favor.
At the trial, the plaintiff gave evidence tending to prove the partnership, and also to prove dealings of Clarke & Co. with the plaintiff. He then offered a witness who proved, that he presented, in December preceding the trial, to John Clarke, a certain account against the said John Clarke & Co., in favor of the plaintiff; and that said Clarke stated, that the said account was due, and that he supposed it had been paid by the defenndant, but had not paid it himself, and did not know of its being ever paid. And the witness to whom the said Clarke made the said acknowledgment produced in court the identical account so presented to said Clarke, and acknowledged by him as aforesaid, which account was in the words and figures following, to wit, “ an account,” &c. And the plaintiff’s counsel offered the contents of said account and the acknowledgment of said Clarke in evidence, under the issue joined upon the plea of the statute of limitations, but the court decided, that the said evidence so offered by the plaintiff of the contents of the said account and of the acknowledgment of the same by the said Clarke, was hot admissible evidence in this cause, and refused to admit the same.” To this opinion, the plaintiff excepted, and from the judgment of the circuit court, he appealed to this court.
* Taylor, for the plaintiff in error.—The only question is, whether r^q the acknowledgment of one partner, after, the dissolution of the part- •-nership, takes the case out of the statute of limitations? We contend, that it does, and rely on the following cases : Whitcomb v. Whiting, 2 Doug. 651 ; Jackson v. Fairbanks, 2 H. Black. 340 ; and Smith v. Ludlow, 6 Johns. 267.
F. S. Key, control.—Although the opinion of the court may be supported upon other grounds, yet it may also be supported upon the point raised, viz : that the acknowledgment of one partner, after dissolution of the copartnership, cannot be received to take the case out of the statute. It can only be evidence of a new promise, and one partner cannot, after dissolution bind the other. No acknowledgment of the debt, by one partner, after dissolution can be given in evidence, on the general issue, to fix the debt upon the other partner. The cases in Douglas and H. Blackstone are different. The joint concern was not dissolved. The authority in Johnson was only a dictum ; the case was decided upon other evidence. Such evidence would be extremely dangerous. No man could be safe, if, after dissolution of the partnership, his partner could continue to bind him for ever. At all events, it is necessary that the plaintiff should first prove the original debt, by other evidence.
Jones, in reply.—If the opposite doctrine be correct, then, even if each of the partners should acknowledge the debt, the evidence would not support a joint action. The acknowledgment is not considered as a new promise, but simply as rebutting the presumption of payment arising from the length of time, and thereby taking the case out of the reason of the statute.
February 19th, 1814. Marshall, Ch. J., after stating the facts of the case, delivered the opinion of the court, as follows :—*It is contended [«74 by the plaintiff in error, that, after the dissolution of the partnership, L
41
74	SUPREME COURT	[Feb’y
Gracie v. Marine Insurance Co.
the acknowledgment of one partner is evidence to revive the original cause of action against both, and that the acknowledgment made in this case by Clarke is sufficient for that purpose,
It has been frequently decided, that an acknowledgment of a debt barred by the statute of limitations, takes the case out of that statute, and revives the original cause of action. So far as decisions have gone on this point, principles may be considered as settled, and the court will not lightly unsettle them. But they have gone full as far as they ought to be carried, and this court is not inclined to extend them. The statute of limitations is entitled to the same respect with other statutes, and ought not to be explained away.
In this case, there is no promise, conditional or unconditional; but a simple acknowledgment. This acknowledgment goes to the original justice of the account; but this is not enough. The statute of limitations was not enacted to protect persons from claims, fictitious in their origin, but from ancient claims, whether well or ill founded, which may have been discharged, but the evidence of discharge may be lost. It is not, then, sufficient to take the case out of the act, that the claim should be proved or be acknowledged to have been originally just; the acknowledgment must go to the fact that it is still due. In the case at bar, the acknowledgment of John Clarke is, that he had not discharged the account presented to him, but he does not say, that it was not discharged. His partner may have paid it, without the knowledge of Clarke, and consequently, the declaration of Clarke that he had not himself paid it, and that he did not know whether his partner had paid it or not, is no proof that the debt remains due, and therefore, is not such an acknowledgment as will take the case out of the statute of limitations. There is no error, and the judgment is affirmed, with costs.
Judgment affirmed.
*75] *Gracie v. Marine Insurance Company of Baltimore, (a)
.Marine insuratice.—Termination of risk,.—Ransom.
A policy on goods, to be safely landed at Leghorn, is discharged, by landing them at the Lazaretto; that being the usage of the trade.* 1
Quaere ? Whether ransom can be recovered, where there is a warranty against particular average ?
Error to the Circuit Court for the district of Maryland. The facts of the case, as stated by Marshall, Ch. J., in delivering the opinion of the court, were as follows :
This case arose on a policy of insurance, bearing date the 19th of June 1807, for $20,000, on the cargo of the ship Spartan, “at and from Baltimore to Leghorn,” the risk to commence on the loading, and to continue “ until the said goods shall be safely landed at Leghorn aforesaid.” The policy contained, in the printed part, the usual stipulation that the assured, in case of loss, should labor, &c., for the preservation and recovery of the goods, to the expense of which the insurers would contribute according to the rate
(a) February 18th, 1814. Absent, Washington, Justice.
1 And see Rice v. Clendining, 3 Johns. Cas. 183.
42
1814]	OF THE UNITED STATES.	75
Gracie v. Marine Insurance Co.
of the sum insured ; in the policy was inserted, in writing, the words “ warranted free from particular average.”
The vessel sailed from Baltimore, in June 1807, and on the 15th of August arrived in the port of Leghorn. According to the laws and usages of the place, ships arriving at that port, and their cargoes, were obliged to perform a quarantine of thirty days, before admission of the cargo, or of any person on board, into the city ; the ships performing it in the port, the cargoes in a certain Lazaretto erected for that purpose on the shore of the port, about half a mile from the city. Some specified articles were excepted from this rule, but the cargo of the Spartan did not come within the exception. On the arrival in port of a vessel liable to quarantine, *the pyg officers of government took possession of the cargo, and removed it L in public lighters to the Lazaretto. Freight was earned upon the depositing of the cargo in the Lazaretto, but payment of it, though often made before, could not be enforced, until after the expiration of the quarantine, and until payment, the lien for the freight continued on the goods. The duties also accrued in the Lazaretto, and until they were paid, the goods could not be removed thence into the city. The §oods remained in the custody of the officers of government, until the expiration of the quarantine, during the continuance of which, neither the master , of the ship, nor the consignees, had any power to interfere with, or even see, them, but under a permit from the local authorities ; such permits were commonly allowed the consignees, who might take samples, and sell by those samples, while the goods were performing quarantine. After quarantine was performed, and an order from the master obtained, the goods were received at the Lazaretto, by the owner or consignee, and transported, at his risk and expense, into the city. This transportation was most usually made by water ; but there was a road along which light' goods might be, and frequently were, carried. Even when goods were sold, during the quarantine, they were removed at the risk and charge of the vendors.
In conformity with these regulations, the cargo of the Spartan was ‘ placed in the Lazaretto. While it remained there, performing quarantine, a body of French troops took possession of the city, seized the Lazaretto, sequestered the goods there deposited, and refused to give them up, until a ransom, amounting to 53 per cent, on their estimated value, should be paid for them. This ransom the owners or consignees were compelled to pay, in order to obtain restitution of their goods. This action was brought to recover it from the underwriters.
Judgment was rendered in the circuit court for the defendants, which judgment was now brought before this court by a writ of error.
* Harper, for the plaintiff in error, contended, 1st. That the land- ["*>77 ing at the Lazaretto was not a landing in safety at Leghorn, within the meaning of the policy. 2d. That the plaintiff was not prevented, by the warranty against particular average, from recovering the amount of the ransom paid.
1. The goods were not landed in safety at Leghorn. They were landed at the Lazaretto, which is no part of the city of Leghorn. The landing contemplated by the policy was at the city ; the place where the goods were to find a market; and not merely a landing at the port. The voyage,
43
77	SUPREME COURT	[Feb’y
Gracie v. Marine Insurance Co.
as to the ship, might terminate at the port, but the goods were to go to the city, and be landed in safety. After having performed quarantine at the Lazaretto, they were to be reshipped into lighters and carried to the city.
But if the landing at the Lazaretto be a landing at Leghorn, yet they were not landed in safety, within the meaning of the policy. It is natural to suppose, that the parties meant such a landing as would put the cargo into the possession and under the control of the consignee. But while it was at the Lazaretto, it was subject to the orders of the master, not of the consignee. It was still liable for freight, and although it is said to be part of the usage of the trade, that the freight is earned, by the delivery at the Lazaretto, yet it is not payable, until the termination of the quarantine. The Lazaretto is a mere substitute for the ship, as a place in which to perform the quarantine. If it had remained on board the vessel, it would unquestionably have been at the risk of the underwriters. The landing was for their benefit, inasmuch as the goods were safer on shore than in the ship.
The seizure was a detention of princes, and until the goods were ransomed, they were lost. Waples v. Eames, 2 Str. 1243 ; Pelly v. Royal Exchange Assurance Co., 1 Burr. 341. *
* ,	2. Notwithstanding the warranty against particular *average, the
J plaintiff may recover upon the clause of the policy authorizing him to labor and travel for the preservation of the property, to the expense whereof the underwriters promise to contribute, according to the rate of the sum insured. The ransom was an expense incurred to save the residue, and prevent a total loss, for which the underwriters would have been liable.
Jones and Pinkney, contra.—1. The voyage was ended by the landing of the goods at the Lazaretto. The policy is satisfied, if they are landed at the port of Leghorn. When the name of a place is used in a policy, it means the port; although Leghorn is a city, yet the port is also called Leghorn. When a place is named as the terminus of the voyage, it means the usual place to which ships come to unlade. It does not always mean the caput portus. It sometimes means the house of general receipt. Doubtful expressions are to be construed in favor of the underwriters. Tierney v. Etherington, cited by Lord Mansfield, in the Bank-saul case of Pelly yr. Royal Exchange Assurance Co., 1 Burr. 348 ; Hargrave’s Law Tracts 46 ; Hale’s Treatise de Portibus Maris, ch. 2, p. 56. The termination of the voyage, in fact and in law, is the landing of the goods at the usual place of landing, at the ultimate port of destination, according to the usage of that trade. The usage of the trade is all important ; the parties are bound to know it ; it forms part of their contract ; it may control and modify a warranty, and illustrate the termination of the voyage. The case states that the freight was earned by delivery at the Lazaretto ; the duties had accrued to the Etrurian government; the transportation from thence to the city would have been at the risk and expense of the consignee or the owner. It was also a place where the goods might be sold by samples : All these circumstances show that the voyage was ended. The general rule is, that if the assured undertake to transport the goods, the underwriters are discharged. Sparrow v. Caruthers, 2 Str. 1236 ; 1 Marsh. 165, 249 ; Rucker n. London Assurance Co., Ibid. 166, 253 ; Hurry n. Royal Exch. Assurance Co., Ibid. 167, 254. The lien for the freight depends either upon the agreement of the
44
1814]	OF THE UNITED STATES.	78
Gracie v. Marine Insurance Co.
parties or the municipal law of the place ; it does not affect the question respecting the *tennination of the voyage. In the cases of Tierney
v. Etherington and Pelly v. Royal Exchange Assurance Co., the L voyage confessedly was not terminated. The government of Leghorn receives the cargo at the Lazaretto, as the agent of the owner or consignee, and holds it for his benefit ; it is entered on the books of the Lazaretto in the name of the ship, the master and the consignee, if known.
The policy was never construed to undertake that the consignee should have the unlimited control over the cargo, after it was landed. But in this case it was under his control; not absolute, but modified by the municipal government of the place. The government had a right so to modify it. Thus, in London, some goods must be deposited in the king’s warehouse. So also, in France, the Emperor took it into his head to turn merchant and monopolize all the tobacco, and ordered it to be stored in his warehouses. In all countries, the power of the consignee is in a certain degree modified. He had a power to take samples and sell by them.
It is said also, that the goods were to be landed at the place of market. But if the place of market means the place where the goods may be sold, and where they are under the control of the consignee, the Lazaretto was that place. The Lazaretto was an appendage to Leghorn, as the Piroeum was to Athens. Suppose, the voyage had been from Carthage to Athens, landing at the Piroeum would have terminated the voyage. So would a voyage from the West Indies to London terminate at the West-India dock; yet something must be previously done by a consignee, at the dock, before he can have the complete control over the goods in the warehouses of the dock company. So, in the port of Baltimore, some goods must be delivered at the Lazaretto. And if a cargo.should be delivered at Fell’s Point (which is out of the city), under a policy on a voyage to Baltimore, the policy would be discharged. The cargo would have been brought to its market.
In the case of Waple$ v. Eames, the ship was not 24 hours moored in good safety: there was no opportunity to unlade. But here, the goods were actually unladen. *In the Eank-saul case, there was no ques-tion whether the voyage was ended ; The ship was in itinere; the L only question was, whether, by the usage of the trade, the goods might be unladen for safe-keeping, while the vessel was repairing.
2. It was only a partial loss, which is excepted from the policy by the manuscript warranty against particular average ; which means partial loss. Although it would have been a total loss, if abandonment had been offered, while the goods were detained, yet as no such offer was made, it is now only a partial loss. Those parts of the policy which are in manuscript are to be particularly regarded, as they control the printed form. 1 Marsh. 229, 305 ; Park 4, 5, 60 ; 4 East 130. Ransom is only a partial loss. It was never considered as coming under the clause of laboring and travelling for the interest of all concerned. If it can come under that clause, then that clause is so far repealed by the express manuscript warranty, that the underwriters shall not be liable for a partial loss. If the French general had taken a part of the goods, there could have been no question that the underwriters would not have been liable ; the ransom represents the part which might have been so taken. The clause respecting the expenses of labor and travel was first introduced in 1741, to remove a doubt whether the insured could so labor
45
80	SUPREME COURT	[Feb’y
Gracie v. Marine Insurance Co.
and travel, without losing his right to abandon ; but he is not bound to labor and travel, nor to ransom. 1 Marsh. 234, 488 ; 3 Burr. 1734 ; 2 Doug. 610.
But if the underwriters are liable under that clause of the policy, they are only liable in the proportion which the loss bears to the amount saved.
Harper, in reply.—1. The first point depends upon the usage of the trade. We say, that the usage merely substitutes the Lazaretto for the
1	ship ; like the cases of the store-ship, at Gibralter, *and the Bank-saul, J at Canton. The principle of all these cases is substitution. The goods were not in the power of the consignee ; he could only make an executory contract; he had no more power over the goods than if they had been upon the ocean.
The lien for the freight continues until the end of the quarantine, when it is to be paid, and not before, because the master has not until then done all that the contract requires.
2	. It. is said, that the exception of partial loss operates upon every part of the policy ; not merely upon its general provisions, but upon every particuar provision, however contradictory it may be to that exception. But the two clauses, viz., the engagement to pay for labor and travel, and the warranty against partial losses, may stand together. The latter means warranted free from all partial losses, except such as. arise from labor and travel for the preservation of the goods. The blanks in the printed form of the clause respecting labor and travel were filled in manuscript, as well as the warranty against particular average, and therefore, are to be equally regarded. That circumstance also shows that the parties intended that both clauses should stand, and have effect. The ransom was as much the means of saving the underwriters from a total loss, as if it had been strictly labor and travel.
February 19th, 1814. Marshall, Ch. J., afterdating the case, delivered the opinion of the court, as follows :—The plaintiff in error contends, 1st. That the placing of the goods in the Lazaretto, was not “ a landing in safety at Leghorn,” and a termination of the voyage. 2d. If the loss happened during the continuance of the risk, the plaintiff is not prevented from recovering, by the warranty in the policy against particular average.
In support of his first point, he contends that “ Leghorn,” in the policy, *821 means the city and not the port of Leghorn. *2d. That the Laza-
J retto being substituted for the ship, for the greater safety of the goods, their situation, as it respects all parties, while performing quarantine in the Lazaretto, is precisely the same as if performing quarantine in the ship. This argument is supposed to be much strengthened by the facts, that freight cannot be demanded until quarantine is performed, and that the lien for the freight continues after the landing of the goods. 3d. That a landing in safety must be such a landing as places the goods at the disposal of the owner or consignee.
However true it may be, in general, that when we speak of Leghorn, we speak of the city which bears that name, it does not follow, that the same meaning is attached to the word when used in a policy. The insurance is ** at and from Baltimore to Leghorn.” Now, if, as is admitted, Baltimore means the port of Baltimore, it would seem not unreasonable to suppose 46
1814]	OF THE UNITED STATES.	82
Gracie v. Maryland Insurance Co.
that, in the same instrument, Leghorn means the port of Leghorn—the place which is the ultimate destination of the vessel on board which the goods are laden. The voyage is understood to be terminated, when the vessel arrives at her port of destination, and has been moored there in safety for twenty-four hours.
But it will be conceded, that the termination of the voyage as to the ship, does not necessarily terminate the risk on the goods. This risk may continue, when the voyage as to the ship is ended. Its duration depends on the intention of the parties, and this intention must be found in their contract.
This brings us to consider the argument that the goods, while performing quarantine in the Lazaretto, remain at the risk of the insurer, in like manner as if performing quarantine in the ship. The words of the policy being “ beginning the adventure on the said lawful goods and merchandises from and immediately following the lading thereof on board of said vessel at Baltimore aforesaid, and so shall continue and endure until the said goods and merchandises shall be safely landed at Leghotn aforesaid.” The risk continues until the goods be safely landed, although the *voyage as to the ship, might be terminated previous to their landing.	*-
In ordinary cases, where the government does not interfere between the parties, this risk would continue, until the goods should be landed in safety at the usual place, and at the disposal of the consignee. If it were usual to receive goods at the Lazaretto, or at any other place on the shore of the port, it would be the duty of the owner or consignee to receive them there, and a landing at such place, it is admitted, would be a landing at Leghorn.
If, on the other hand, the goods, while performing quarantine, remained on board the ship, and could not be landed, it is not to be doubted, that they would remain at the risk of the insurer. How, then, it is asked, can the substitution of the Lazaretto for the ship alter this risk ? A substitution made, not by the act of the parties, but of the government of the country ? A substitution which does not alter the rights of the parties, since it leaves the lien of the master for his freight unimpared, and gives no power over the goods to the owner or consignee ? A substitution beneficial to the insurer since it diminishes the risk on the goods ?
Whatever might be the effect of this reasoning, if the establishment of the Lazaretto, and the laws of quarantine, had been of so recent a date, as not to have been in the contemplation of the parties to the contract, as to which the court gives no opinion, this cause may well be decided upon the usage found in this case, a usage of ancient date and of general notoriety. It existed, and was known to exist, when this contract was formed. When the parties stipulated, that the adventure should continue till the goods were landed in safety at Leghorn, they knew that the place of landing was the Lazaretto, and that the landing would be made under the direction and control of the local authority. This, then, must be considered as-the landing contemplated in the policy. It is the landing which terminates the risk. Had the parties intended to continue the risk, during the continuance of the goods in the Lazaretto, they would have inserted, in the policy, words manifesting that intention. Instead of terminating the adventure on the landing, a *fact which they knew must take place at the Lazaretto, thirty days before the goods could be delivered to *•
47
84	SUPREME COURT	[Feb’y
Richards v. Maryland Insurance Co.
the owner or consignee, they would have continued it, till the goods should be landed in safety, and should perform their quarantine.
The court is of opinion, that under this policy, the goods in the Lazaretto were not at the risk of the underwriters, and consequently, that there is no error in the judgment of the circuit court. It is affirmed, with costs.
Judgment affirmed.
Gracie v. Maryland Insurance Company.
Marshall, Ch. J.—This case differs from that against the Marine Insurance Company of Baltimore only in one particular. 'A part of the cargo remained on board the ship, until the arrival of the French troops, when the departure of the vessel was prohibited by the general, and the ransom made. This circumstance does not, in the opinion of the court, vary the case ; because, omitting all other considerations, the loss, within the risk, being on only a part of the cargo, is a partial loss, and is affected by the warranty against particular average loss. This judgment is also to be affirmed, with costs.
Judgment affirmed.
Richards and others, assignees of McKean, a bankrupt, v. Maryland Insurance Company, (a)
Ba/rikruptcy.—Statute of limitations.
Upon the death of an assignee under the bankrupt law of the United States, the right of action, for a debt due to the bankrupt, vested in the executor of the assignee.
If an executor do not cause himself to be made party to a suit, brought in the lifetime, and in the name, of the testator, and pending at his death, it is to be considered as a voluntary abandonment of the action, so as to exclude the executor from the equity of the exceptions to the statute of limitations.
Queere? Whether the commissioners of bankrupt had a right to appoint a second assignee, in case of the death of the first ?
At common law, no action could be renewed by journey’s accounts, in a case of voluntary abandonment.
Error to the Circuit Court for the district of Maryland, in an action of ^„^1 covenant, on a policy of insurance *under seal. The defendants
J pleaded the Maryland statute of limitation of twelve years (1715, ch. 23, § 6), which, enacts, “ that no specialty whatsoever, shall be good and pleadable, or admitted in evidence against any person or persons of this province, after the principal debtor or creditor have been both dead twelve years, or the debt or thing in action above twelve years standing,” with a saving of five years in cases of infancy, &c.
The replication to this plea stated, in substance, the following facts : That the cause of action accrued on the 1st of May 1797 ; that McKean was declared a bankrupt, on the 19th of March 1801, his estate was duly assigned to Thomas Allibone, who, on the 6th of October1 1806, instituted a suit on the policy, and died on the 1st of August 1809, whereby the suit was abated. That on the 11th of January 1810, the plaintiffs were, by the commis-
(a) February 11th, 1814. Absent, Washington, Justice.
48
1814]	OF THE UNITED STATES.	85
Richards v. Maryland Insurance Co.
sioners, appointed assignees, in pursuance of the choice of the creditors regularly convened for t*hat purpose, and brought the present action, at the next term after the death of Allibone, the former assignee. To this replication, there was a general demurrer.
The judgment of the court below, upon the demurrer, was in favor of the defendants ; and the plaintiffs brought their writ of error.
Harper, for the plaintiffs in error, made four points. 1. That an assignee, under the commission of bankruptcy, had no interest in the effects of the bankrupt, which could vest in his executors or administrators, but was a mere trustee or agent of the commissioners. 2. That the commissioners had power, upon the death of an assignee, to appoint another in his stead, and so toties quoties. 3. That under the equity of the statute of limitations, the plaintiffs had a right to bring a fresh suit, upon the abatement of the first. 4. That there was a good continuance of the suit by journey’s accounts.
*1. The bankrupt law gave no estate to the assignee. He had no r*8g, interest in the effects of the bankrupt ; the object of the law was 1 merely to appoint a curator of the estate, with an authority like that of an administrator. It was a mere personal agency, which terminated by the death of the assignee. It was the intention of the law, that this agent should have the confidence of the creditors ; but that intention would be defeated,, if the executor or administrator of the assignee should become the agent. See Bankrupt Law of the United States, § 6, 7, 8 (2 U. S. Stat. 23-4).
2.	The commissioners, under the equity of the 6th and 8th sections, had power to appoint a new assignee or assignees, in case of the death of the assignee for the time being. Their power was like that of the ordinary in granting letters of administration. No express authority is given to the ordinary to grant letters de bonis non, yet his authority to do it was never disputed. The intention of the bankrupt law was, that there should always, be an assignee, until the estate should be settled. The general power to appoint, implies an authority to keep thé office always full. The plaintiffs^ therefore, had power to maintain this action.
3.	The act of limitations does not apply to this case. Cary v. Stephenson, 2 Salk. 421. The principle of that case was, that the plaintiffs had done-all in their power, and therefore, the statute of limitation was not a bar. To. make the statute apply, there must be negligence on the part of the plaintiff,, and injury to the defendant by the delay. If an administrator commence the action, within a year after the granting of letters of administration, the statute is no bar, unless it bejjan to run in the life of the intestate. So, in the case of an executor of an executor. Buller N. P. 150 ; Esp. N. P. 150. These cases all depend on the same general principle—the equity of the statute. If there be no negligence on the part of the plaintiff, and no injury to the defendant, the case is within that equity.
4.	This new action is a good continuation of the old suit, by journey’s accounts. Spencer's Case, 6 Co. 10. A new action by journey’s accounts may be had, where the former action abates by the fault of the clerk, &c., but *not if it be abated by his own default. The doctrine applies as p8y well to personal as to real actions. JElstob v. Thorowgood, 1 Ld. Raym. *-283. The principle of that case is, that, where the second plaintiff derives his
8 Ckanch—4	49
87	SUPREME COURT	[Feb’y
Richards v. Maryland Insurance Co.
authority from the same source as the first, he may have the action by journey’s account.
Pinkney, contra.—The argument divides itself into two parts. 1. The construction of the act of congress. 2. The effect of the act of limitations.
1.	Under the bankrupt law, the commissioners had no power to appoint a new assignee, in case of the death of the first assignee. Their power in this respect was limited to the case of a removal of the assignee by the creditors. Much is said about the equity of the statute, but this court is authorized jus dicere, non jus dare. The 6th section provides for the appointment of an assignee ; the 7th authorizes the commissioners to appoint a temporary assignee, without the consent of the creditors ; and the Sth section provides for the removal of an assignee, and the appointment of another in his place. If the court can extend the equity of the statute to the case of the death of an assignee, it must be by a very liberal construction.
By the 18th section, the estate and effects of the bankrupt are to be conveyed to the assignee, his heirs, executors, administrators and assigns for <ever: the 50th section conveys the same idea. The estate descends to the heir of the assignee, clothed with the trust, and he has all the rights, and is subject to all the responsibilities and duties of the original assignee. But if the court can, by equity, extend the power of the commissioners to the .appointment of a new assignee, in case of death, then, under the 9th section of the act, the new assignee might have been substituted for the old, and the action would not have abated by the death, but might have been prosecuted to judgment by the new assignee. So that if the suit was abated, it was throHgh negligence, or voluntary act; and no plaintiff, who
J is in default, can have the benefit of the equity of the statute, by journey’s accounts.
2.	As to the Maryland statute of limitations. It differs from the English statute of 21 Jac. I., which contains no limitation of actions upon specialties, judgments or recognisances. The same rule of equitable construction, therefore, cannot apply to both. But even if the same rule of construction could be applied to the Maryland statute, yet it does not contain the same clause upon Which the equity arises in England. The object of the statute was to prevent injury to defendants by the loss of evidence. If the statute once begins to run, nothing will stop its course but an effectual suit. If a promise be made to a feme sole, and the day after the cause of action accrues, she marry, the statute continues to run, notwithstanding the coverture, so in case of non compos, absence, &c. 4 Bac. Abr. 479, note ; 1 Ibid. 413.
But it is only the equity of the 4th section of the English statute that could have aided the plaintiffs. That section allows a new action to be brought within a year, in three cases : 1. Where judgment has been reversed by writ of error: 2. Where judgment has been arrested : and 3. Where an outlawry has been reversed. 4 Bac. Abr. 471 (Gwillim’s edition), § 4. The courts have said, that abatement is within the same reason, but they have not said, that other representatives than those mentioned in the 4th section may bring a new action, except in the case in Lord Raymond, which has been overruled in that respect. 1 Ld. Raym. 284. The Maryland statute does not contain a section similar to the 4th section of the 21st James.
Harper.—But that section of the English statute has been always in use 50
1814]	OF THE UNITED STATES.	88
Richards v. Maryland Insurance Co.
in Maryland, in that respect, and is in daily practice in their courts; and therefore, and by force of the bill of rights and constitution of Maryland, has been adopted as part of the law of the land.
*Pinkney.—The statute of James is not in force in Maryland, in ra!: respect to those cases for which the statute of Maryland provides.
This statute professes to provide a limitation for all actions,* and to enumerate all cases in which exceptions should be made. W ith the English, statute before them, and while exercised in selecting such parts of it as they thought proper, the legislature cannot be presumed to have been so negligent as to omit the 4th section, if they intended to adopt it.
But if it be in force in Maryland, this court will not push the equity of it farther than has been done in the courts in England. They have never permitted such a representative, as these plaintiffs are, to bring a new action, nor any one to bring a new action, where the benefit of the former one has been lost by negligence or voluntary abandonment ; which we say was the case here, for the action might certainly have been continued and maintained either by the executor of Allibone, or by the new assignees. In the case cited from 2 Salk. 421, Cary v. Stephenson, the cause of action arose after the death of the intestate, and before the letters of administration were granted. For if the statute had begun to run, in the life of the intestate, it would have continued to run, although no administration had been granted.
The next case is Cawer v. James, or Carver v. James, or Kar ver v. James, as it is differently called in several books. Buller N. P. 150 ; Esp. N. P. 150 ; Willes 255. In that case, the action was brought by the executor, and the equity of the 4th section of 21 Jac. I.' extends only to the party himself, his heirs, executors and administrators, and not to any other representative. The case cited from 1 Ld. Raym. 283, supports the same doctrine. Both plaintiffs were executors of the original creditor. The court decided the case upon the doctrine of journey’s accounts, and the equity of the 4th section of the statute of James. The case put by the court, by way of illustration, is precisely in point. If the first plaintiff had been administrator (instead of executor) durante minoritate, the executor, when of age, could not have continued the suit by journey’s accounts, nor would he have been aided by the equity of the statute, because he was not the legal representative of the *former plaintiff. There is no case in which an assignee has been decided to be within the equity of that section of the statute. *■ Although both assignees may derive their authority from the same source, yet the one is not the legal representative of the other. The opinion in the case of JElstob v. Thorowgood (1 Ld. Raym. 283) is expressly retracted, in the case of Kinsey v. Heyward, Ibid. 432, where the same court say, “that in no case can a writ of journey’s accounts be, but by the same plaintiffs, or some of them, who were plaintiffs in the former writ; and that to say that the general executor, and the executor durante minoritate, were as one person in the office, is to strain the point too far ; for it must be the same plaintiff, not only by representation, but by name ; for the second writ is a continuance of the first, which cannot be but by the same person, not in representation only, or in respect of their office, but strictly and truly the same person.”
51
90
SUPREME COURT
[Feb’y
Richards v. Maryland Insurance Co.
Jones, on the same side.—Even if the doctrine of journey’s accounts could apply, the plaintiffs were too late. In journey’s accounts, the writ is said to be granted per dietas computatas, which originally meant as many days journeys as the plaintiff was distant from the court of chancery, where he was obliged to go to get a new writ, accounting twenty miles for a day’s journey, and it was originally necessary to show the number of days in the replication, that by computation it might appear that he was within the time allowed. This was afterwards settled by a general rule, to be thirty days. In this replication, the plaintiff has replied simply the facts, and says nothing of the dietas computatas. The new writ, by journey’s accounts, operates a continuance of the old suit, and in the judgment, the plaintiff recovers the costs of both writs, and therefore, it must be brought by the same plaintiff. Spencer's Case, 8 Co. 10 ; 2 Inst. 288 ; 2 Com. Dig. 433, tit. Costs. In none of the cases decided upon the equity of the statute of James, has the plaintiff prevailed upon appeal. They are little better than obiter dicta.
Harper, in reply.—The opposite counsel almost admit our construction *of the bankrupt law. The authority of the assignee is like that of J an administrator. The power of the commissioners is like that of the ordinary.
Although the writ was abated; yet the plaintiffs might renew the suit. They were not in default, by not continuing the old writ, for if they might have continued it, they were not obliged so to do. Thus, in Maryland, an executor may be made a party, in the place of his testator ; but if he does not come in, and the suit is thereby abated, he may bring a new suit. The right of the plaintiffs to continue the old suit, under the 9th section of the bankrupt law, was doubtful. They preferred a safe, plain, clear, undeniable remedy. Their having done so, ought not to exclude them from the equity of the statute of limitations. It is well known to every lawyer in Maryland, that the 4th section of the statute of James had been used and practised in the courts of that state, and it has, therefore, become the law of the land, by force of the bill of rights.
The case of Kinsey v. Heyward was not reversed on its merits, the doctrine of the court of common pleas, that the plaintiff was within the equity of the 4th section of the statute of James, was not denied by the king’s bench. Nor was the case of Carver v. James reversed upon the merits. The doctrine, therefore, was in effect affirmed by implication ; because they would not have assigned other causes of reversal, if the principle of the case itself was erroneous.
February 25th, 1814. Johnson, J., delivered the opinion of the court, as follows :—This is an action of covenant, brought on a policy of insurance under seal. The facts as made out in the pleadings are these : The cause of action accrued on the 1st May 17 9 7 ; McKean was declared a bankrupt, and on the 19th March 1801, his estate was assigned to Thomas Allibone ; on the sixth of October 1806, the assignee instituted a suit on this policy, and died on the 1st of August 1809. On the 11th of January 1810, the *921 plaintiffs were *appointed assignees, in pursuance of the choice of • the creditors regularly convened for that purpose, and brought the present action to the term next after the death of the assignee.
52
1814]	OF THE UNITED STATES.	92
Richards v. Maryland Insurance Oo.
The plea is the statute of limitations. To this is filed a special replication setting forth the above facts, with a view to sustain an exception from the opération of the statute. The case comes up on a demurrer to the replication, and for the defendant there were two points made at bar. 1st. That the action is not maintainable at all, by the present plaintiffs, because the bankrupt act makes iio provision for the appointment of a new assignee, upon the demise of the first. 2. That the right of action vests in his personal representative and could be maintained by him ;, that the abatement by the death of the first assignee, was a voluntary abandonment of the suit, and put the case of the plaintiffs out of the reason of the exceptions from the operation of the statute. In support of the action, it was contended, that the former suit abated by the death of the first assignee ; that the right did not vest in his executors, because it was a mere trust or agency ; that. the right of substituting the new assignees in the action is secured only in the case of removal by the creditors ; that this case is without the statute of limitations, upon an equitable construction of that statute ; and lastly, that this action is a good continuance of the former, by journey’s account.
We are of opinion, that the plea of the statute of limitations must be sustained. On the first point made by the defendant, the court would be understood to give no opinion. Being satisfied that the plaintiff has not brought himself within any one of the exceptions which have been admitted to the statute of limitations, and feeling no inclination to multiply those exceptions, they dispose of the case upon the second ground alone. The cases which, though literally within the words of the statute, have been held to be without its spirit, are those only in which circumstances intervened, which rendered it impossible or inconsistent with known and established principles, that a cause of action could be revived by the renewal of the contract, or enforced by a suit at law within the time prescribed. The object *of the law is, to secure the individual from the machinations of r*go dishonesty, when attempted under the advantages attendant upon L lapse of time, loss of papers, and death of witnessses. But when cases present themselves, in which no laches can be imputed to the plaintiffs, but great injustice would be done, by applying to such cases the effect of the statute, the conclusion of reason and of the law is, that such cases were not in the mind of the legislature, when enacting that law. Such are the cases of a want of parties, plaintiff or defendant, whereby a temporary suspension of legal remedy takes place.
But in no case of a voluntary abandonment of an action, has an exception to the statute of limitations been supported ; and such we are of opinion, is the case before us. Whether it was, or was not, a case in which the bankrupt law authorizes the appointment of the present assignee, we deem immaterial. The case is certainly not within the express letter of the statute, and it is only under its equitable, and perhaps, its proper construction, that the appointment of the new assignees (the present plaintiffs) can be supported. But the same equity which would support this appointment, would support the substitution of the new assignees for the former, in the existing action.
We are, however, of opinion, that the first assignee was not a mere naked agent or attorney for the creditors. The words of the bankrupt act, § 13, are, that the debts assigned to him shall be vested in him, as if they had
63
93
SUPREME COURT
[Feb’y
Crowell v. McEadon.
been contracts made with himself originally. Now, one necessary incident to such a contract would be, that the right of action would vest in his personal representative, and the act of congress saves the suit from abatement, by authorizing the substitution of the executor or administrator, instead of the deceased plaintiff. The same answer applies to the antiquated doctrine of continuance by journey’s account. The fact is, that the mode of continuing a suit in the name of the executor or administrator, provided for by statute, is a complete substitute for the continuance by journey’s account. But even at common law, such a continuance or connection of suit was allowed in no case of voluntary abandonment, and if the benefit of it was intended to be asserted, it was necessary to claim it, in the form of renewing the action.
Judgment affirmed, with costs.
*94]	*Crowell and others v. McFadon'. (a)
Seizure—Embargo.
Under the 11th section of the embargo act of 25th April 1808, the collector was justified in detaining a vessel, by his honest opinion, that there was an intention to violate or evade the provisions of the embargo laws. It was not necessary for him to show that his suspicion was reasonable.
Error to the Supreme Judicial Court of the Commonwealth of Massachusetts. The case, as stated by Duvall, J., in delivering the opinion of the court, was as follows:
An action of trover for 650 barrels of flour, of the cargo of the schooner Union, was brought by John McFadon against Joseph Otis and the appellants, in the court of common pleas for Suffolk county, in the commonwealth of Massachusetts, where a trial was had and judgment rendered in favor of the defendants. From this decision there was an appeal to the supreme judicial court of that state, in which the cause was again tried and a verdict and judgment rendered for the plaintiff for $3716.30 and costs. Joseph Otis died, whilst the suit was depending in the supreme judicial court.
The following are the principal facts appearing on the record in this case : The schooner Union, Benjamin Hawes, commander, with a cargo of 650 barrels of flour, and five tons of logwood, shipped by John McFadon, of Baltimore, was cleared at that port for Machias, in Massachusetts, late in the month of April, in the yeai’ 1808. She had originally cleared for Passa-maquoddy, on the 16th of April, before the collector had received notice of the act of the 25 th of the same month, which authorised him to detain the vessel : the destination was changed to Machias, and a clearance obtained accordingly. But the original destination of the flour on board, for Eastport, remained on the face of the manifest. The flour was shipped for account and risk of Josiah Dana, of Machias, and in his absence, Jonathan Bartlett, of Eastport, or his assigns.
The Union sailed from Baltimore, the last of April, and meeting with head winds, the commander put into Hyannis, in the district of Barnstable. She was soon afterwards boarded by Joseph Crowell, one of the inspectors
(a) February 16th, 1814. Absent, Washington, Justice.
54
1814]	OF THE UNITED STATES.	94
Crowell v. McFadon.
of the revenue in that district, who, on inspecting her papers, thought proper to *submit them to the examination of Joseph Otis, the collector. r$fl. The collector, upon a consideration of the circumstances before L stated, was of opinion, that it was the intention of the concerned to violate or evade the provisions of the embargo laws, and therefore, detained the vessel, by virtue of the authority vested in him by the 6th and 11th sections of the act of the 25th of April 1808 (2 U. S. Stat. 500-1), until the decision of the president of the United States could be had thereon. The president, after due inquiry, approved and confirmed the conduct of the collector. The vessel remained in this situation until the 25th of July, when she was taken to Gage’s wharf by Joseph Hawes, inspector of the port, and her cargo landed and stored, with the assent of the agent of the owners, and the vessel discharged. On the 4th of October following, the collector offered to deliver the flour to the agent, on payment of the expense of storing.
The collector detained the Union, under the 6th and 11th sections of the act of the 25th of April 1808. The 6th section provides, “that no ship or vessel, having any cargo whatever on board, shall, during the continuance of the act laying an embargo on all ships and vessels in the ports and harbors of the United States, be allowed to depart from any port of the United States, for any other port or district of the United States, adjacent to the territories, colonies or provinces of a foreign nation ; nor shall any clearance be furnished to any ship or vessel bound as aforesaid, without special permission of the president of the United States.” The 11th section provides, (hat the collectors of the customs be and they are respectively authorised to detain any vessel, ostensibly bound with a cargo to some other port of the United States, whenever, in their opinion, the intention is to violate or evade any of the provisions of the acts laying an embargo, until the decision of the president of the United States be had thereupon.
With this evidence, the cause came on to be heard in the supreme judicial court of Massachusetts, and at the trial, the judge charged and instructed the jury, that under, the circumstances proved by the defendant, neither the said collector, nor any person, by his order, by virtue of the act aforesaid, had any right to intermeddle with or unlade the cargo of the said schooner, and that *such unlading was an unlawful act and a conver-sion of the cargo by the defendants ; and with this direction, the jury *-found a verdict for the plaintiff to the amount before mentioned. To this opinion, an exception was taken, and the cause was removed to this court, by writ of error, in pursuance of the 25th section of the act to establish the judicial courts ,of the United States.
Pinkney (late attorney-general of the United States), for the plaintiff in error, contended, that as the landing and storing the cargo was by consent of the agent of the owner, the only question was, whether the collector was justified in detaining the vessel, by his honest suspicion that the intention was to violate or evade the provisions of the embargo laws. Upon this point, he insisted, that it was not incumbent on the collector to show that he had reasonable grounds of suspicion.’ It was sufficient, if he satisfied the. jury, that, in his honest opinion, there was such an intention.
Harper, contra, contended, that the question was not whether the detention was justifiable, but whether the unlading was justifiable. If the land-
55
96	SUPREME COURT	[Feb’y
Crowell v. Mcl’adon.
ing was by the consent of the agent of the owner, it was a consent forced upon him by the detention of the vessel. But congress could not mean to subject the vessel to the arbitrary opinion of the collector. The detention was not lawful, unless the circumstances justified the suspicion. The collector must, at least, show probable cause. The facts of the case did not authorise the suspicion.
Pinkney, in reply.—The question is still the same. As the unlading was with the assent of the agent of the owner, it was a lawful act, if the detention was lawful. The law did not mean to make the collector responsible for the sound exercise of his discretion. He was to have no guide but *q^-| *his own honest opinion. It is not like the case of capture as prize
■* of war, where the officer acts at his peril, and must exercise a sound discretion and must have reasonable grounds of suspicion. But here it is put upon the opinion of the collector, and he is bound to act upon that opinion. If he fail to do so, he is liable for a misdemeanor in his office. If he honestly err in his suspicion, he is excused. Whether it be his honest opinion, is a matter for the decision of the jury.
This cause was argued at last term by the Attorney- General and Jones, for the plaintiffs in error ; and by Amory and P. P. Key, for the defendants in error.
Pinkney, Attorney-General, suggested a doubt, whether an action for damages, for a seizure on navigable waters, was not as much a cause of admiralty and maratime jurisdiction as if the proceedings were in rem.
Amory and Key contended, that the 11th section of the act of 25th April 1808, only gave authority to the collector of the district who was to grant the clearance, to detain the vessel, and that the collector of another district had no right to stop a vessel passing through an intermediate district. The law gave no right to seize, but merely to detain, which shows that the authority is given only to the collector within whose official control the vessel is. The collector to whom application is to be made for a clearance, is the only person to whom the discretion is intrusted. He has the best means of information, and if suspicion should be excited, it is there only that the owtier can furnish the means of removing it. The opposite construction of the law would give to collectors at the mouths of our bays the whole control of our commerce, and would subject it to much vexation. The whole trade of the Chesapeake would be subject to the control of the collector of Norfolk.
Jones, in reply, contended, that the law authorised any collector of *.8-| *any district to stop and detain any vessel which might be passing
-* through his district, if he really suspected her of an intention to violate the provisions of the embargo laws.
February 28th, 1814. Duvall, J., («) after stating the facts of the case,
(a) Judge Livingston was absent when this opinion was delivered. Judge Story gave no opinion, having some impression that he was, at a former period, retained as counsel in the cause, although he did not remember arguing it.
56
1814]	OF THE UNITED STATES.	98
Beatty v. Burnes.
delivered the opinion of the court, as follows :—This court is unanimously of opinion, that the direction of the judge of the supreme judicial court of Massachusetts was erroneous. The law of congress under which the collector acted is clear and explicit. The collector was bound by law to seize and detain the Union, on her arrival in his district, if, in his opinion, it was the intention to violate or evade any of the provisions of the embargo laws, and his conduct was approved and confirmed by the president. The landing and storing the cargo, whether to preserve it from injury or to secure it from ruin (which, in this case, was done with the consent of the agent of the owner), was a necessary consequence of the detention. The law places a confidence in the opinion of the officer, and he is bound to act according to his opinion ; and when he honestly exercises it, as he must do in the execution of his duty, he cannot be punished for it. The judgment of the court below is reversed, with costs.
Judgment reversed.
Beatty’s administrators v. Burnes’s administrators, (a) '
Statute of limitations.
The Maryland statute of limitations of three years, is a good bar to an action of assumpsit for money had and received, brought to try a title to lands in the city of Washington, under the 5th section of the act of Maryland of November 1791, ch. 45.
Queers? Whether, by the Maryland act of cession of the district of Columbia to the United States, the state conveyed to the United States the vacant and unappropriated lands in the district ?
Error to the Circuit Court for the district or Columbia, sitting at Washington. *The case as stated by Story, J., in delivering the r*qq opinion of the court, was as follows :	*■ .
This is an action for money had and received, brought by the plaintiffs, as administrators of Charles Beatty, deceased, against the defendant, as administrator of David Burnes, deceased. The declaration alleges the promise to have been made in the lifetime of the respective intestates. The defendant has pleaded the general issue, and the statute of limitations of Maryland.
Upon the trial in the circuit court for the district of Columbia, the plaintiffs sought to support their action, under the 5th section of the statute of Maryland, of November 1791, ch. 45, concerning the territory of Columbia, and the city of Washington, that section is as follows : “ And be it enacted, that all the squares, lots, pieces and parcels of land, within the said city, which have been or shall be appropriated for the use of the United States, and also the streets, shall remain and be for the use of the United States ; and all the lots and parcels which have been or shall be sold to raise money as a donation as aforesaid, shall remain and be to the purchasers according to the terms and conditions of their respective purchasers.
“ And purchases and leases from private persons, claiming to be proprietors, and having, or those under whom they claim having, been in possession of the lands purchased or leased, in their own right, five whole years next before the passing of this act, shall be good and effectual for the estate, and
(a) Absent, Washington, Justice.
57
99	SUPREME COURT	[Feb’y
Beatty v. Burnes.
on the terms and conditions of such purchases and leases respectively, without impeachment, and against any contrary title now existing ; but if any person hath made a conveyance, or shall make a conveyance or lease, of any lands, within the limits of the said city, not having right and title to do so, the person, who might be entitled to recover the land, under a contrary title now existing, may, either by way of ejectment against the tenant, or in an action for money had and received for his use, against the bargainoi’ or lessor, his heirs, executors, administrators or devisees, as the case may require, *inni recover money received by him *for the squares, pieces or parcels
J appropriated for the use of the United States, as well as for lots or parcels sold, and rents received by the person not having title as aforesaid, with interest from the time of the receipt; and on such recovery in ejectment, where the land is in lease, the tenant shall thereafter hold under, and pay the rent reserved, to the person making title to and recovering the land; but the possession, bond fide acquired, in none of the said cases, shall be changed.”
The plaintiffs offered evidence, that on the 16th of April 1792, Charles Beatty, the intestate, returned into the land-office for the Western Shore of Maryland, a certificate of survey, dated on the 3d of April 1792, and then paid the.usual caution-money for the land described in said certificate. On the 23d May 1792, a caveat against the issuing of a patent for the lands on said certificate, was filed by David Burnes, the intestate, which caveat was discontinued on the 23d of May 1801, by virtue of a certain act of the state of Maryland. On the same day, a patent issued from the land-office to Charles Beatty for the land described in said certificate, which land is within the limits of the city of Washington, and was taken up by Beatty as a vacancy ; but Beatty never had actual possession thereof, nor ever claimed to make division thereof with the city commissioners, as an original proprietor, pursuant to the statute of Maryland (1791, ch. 45). In fact, the same land had been held and claimed by David Burnes, in his own right, for more than five years before the passage of the statute aforesaid, as included in the lines of a grant made as early as 1720. The plaintiff offered evidence, however, that the land included in Beatty’s patent, was without the lines of the land to which Barnes was, under his grant, really entitled, and that it was vacant land of the state of Maryland.
The warrant, under which Beatty’s patent was obtained, was (before the location within the limits of Washington) in part located upon and applied to other lands of the state of Maryland, not within the said city, oi' the county in which it was situate, while belonging to Maryland. Burnes, in his lifetime, and before the statute of 1791, ch. 45, made a conveyance of the land in controversy, as an original proprietor, to certain trustees, for the *1 di 1 PurPoses named in *that statute, and received of the city commis-
J sioners, on account of parts of the same land appropriated to city purposes, the sum of 87343.82, in various sums, paid between October 1792 and June ,1796 ; and also received 81000 on account of other parts of said land, which he sold and conveyed to individuals. Burnes died in May 1799, and administration of his estate was granted, in Prince George’s county, in the same year, to his widow, who died in January 1807. In April 1803, administration of his estate was granted to the defendant, by the orphans’ court of Washington county, in the district of Columbia. Beatty died 58
1814]	OF THE UNITED STATES.	101
Beatty v. Burnes.
some time before May 1805, and in that month, administration of his estate was granted to the plaintiffs. The present action was brought to recover the money so received by Burnes, upon the ground, that it was the proceeds of the sale and disposition of land included in Beatty’s patent. No demand or claim was ever made by Beatty, on Burnes or his administrators, in his lifetime, for the same money, although both parties, from the year 1791, until their respective deaths, lived within the limits of the district of Columbia, and within two miles of each other; nor did the plaintiffs ever make any demand or claim upon the defendant until February 1810. Under these circumstances, the court below were of opinion, that the plaintiffs could not sustain the action, and upon that direction, the jury found a verdict for the defendant.
F. /S. Key, for the plaintiffs in error.—Two questions arise in this case. 1st. Whether the plaintiffs have a good cause of action, under the patent to Beatty, if not barred by the statute of limitations ? and '2d. Whether the statute of limitations is a bar to the action ?
1.	As to the title of Beatty. The caveat by Burnes was pending, when congress assumed the jurisdiction over the district of Columbia, which was on the 27th of February 1801. The patent did not issue until the 23d May 1801, but according to the law of Maryland, *adopted as the law of that part of the district of Columbia in which the land lies, the title has relation to the return of the certificate of survey, and payment of the purchase-money to the state, if the original warrant of survey was general; but if it was a special warrant,- the title relates to the date of the warrant. That is to say, in either case, the title relates to that act of the party which appropriates and locates a particular tract of land under a warrant of survey. Beatty had two warrants. The first was a special warrant for 80 acres, and was dated the 22d of April 1791,z before the statute of Maryland of 1791, which ceded the territory of Columbia to the United States. The other warrant was for six acres, and was dated the 26th of March 1792. A special warrant contaips the name of the county in which it is to be executed, and also such a location or description of the land intended to be surveyed, as the party directs. It binds and secures the land, therein described, from the operation of other warrants, but it may be located anywhere else. A common warrant is for the number of acres required, “ not formerly surveyed for, nor cultivated by any person,” and is directed to any surveyor legally required. Kilty’s Land-holder’s Assistant 468.
Beatty’s title relates (if not to the date of the first warrant) to the date of the return of the certificate of survey, and payment of the purchasemoney, which was on the 16th of April 1792. Nothing but the form of a grant was necessary to complete the title, before congress assumed the jurisdiction.
But it is contended, that the state of Maryland, by the 2d section of the act of November 1791, ch. 45, ceded to the United States the land in question. That section is as follows : “ Be it enacted, &c., that all that part of the said territory, called Columbia, which lies within the limits of this state, shall be, and the same is hereby acknowledged to be, for ever ceded and relinquished to the congress and government of the United States, in full and absolute right and exclusive jurisdiction, as well of soil, as of per-
59
102	SUPREME COURT	[Feb’y
Beatty v. Burnes.
sons residing, or to reside, thereon, pursuant to the tenor and effect of *	*^e eighth section of the first article of the constitution of govern-
-* ment of the United States ; provided, that nothing herein contained shall be so construed to vest in the United States any right of property in the soil, as to affect the rights of individuals therein, otherwise than the same shall or may be transferred by such individuals to the United States ; and provided also, that the jurisdiction of the laws of this state, over the persons and property of individuals residing within the limits of the cession aforesaid, shall not cease or determine, until congress shall by law provide for the government thereof, under their jurisdiction, in manner provided by the article of the constitution before recited.” This section did not transfer to the United States the vacant lands in the district of Columbia.
The 8th section of the first article of the constitution of the United States only gave congress power “ to exercise exclusive legislation over such district (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of congress, become the seat of the government of the United States.” It did not authorize congress to accept the right of soil. The act of Maryland does not use words of conveyance of soil ; they purport only a cession of jurisdiction ; “ ceded and relinquished ” are not words of grant. If they conveyed the soil, they conveyed the persons also, for the same words are applied to them as to the soil. The legislature of Maryland were not competent to convey the soil, and it is doubtful, whether they could transfer the jurisdiction. A title to vacant lands in this part of the district could only be attained ‘by the regular proceedings in the landoffice of Maryland.
2.	As to the statute of limitations. The action of assumpsit given by the 5th section of the act of November 1791, c. 45, is not to be considered as within the clause of the statute of limitations applicable to assumpsits. It purports to be a substitute for an action of ejectment, which is limited to twenty, not to three years. It is evident, that the object of the legislature * n was merely to protect the possession, not to take away the right. *It
J is, therefore, natural to suppose, that they intended that every person who could maintain ejectment should be entitled to maintain this action of assumpsit which was given in lieu of it, and only given that the judgment might affect the vendor and not the vendee ; and that the plaintiff should recover the price and not the land itself. The statute applied to conveyances and sales then already made, as well as to conveyances and sales thereafter to be made. Suppose, a sale made more than three years before the statute. The legislature did not surely intend to give a barred remedy in the place of an effective one. An action of debt, given by statute, for an escape, is not barred by the statute of limitations.
But this is a case of trust, and trusts are not within the statute of limitations. Burnes received the money for the use of Beatty. In a case of trust, the statute does not begin to run, until a demand is made. On this point, there is a case of money received by an attorney for his client; and another, of fees received for a judge by his clerk. We could not prevent Burnes from receiving the money; the law, therefore, makes him out trustee.
Jones, contra.—It is said, that the legislature of Maryland was not com-60
1814]	OF THE UNITED STATES.	104
Beatty v. Burnes.
petent to convey the soil, and that congress had no power to accept it. Exclusive legislation comprehends all the rights over the territory and inhabitants which the state of Maryland had. If, therefore, the authority rested upon those words alone, the right to accept a cession of the soil would be implied. The constitution of the United States requires a cession of territory, before congress could exercise exclusive legislation. The constitution of Maryland does not limit the mode in which the state shall grant its vacant lands. It is competent to do it, by a legislative act, as well as by the intervention of the land-office. But the constitution of the United States is paramount to the constitution of Maryland, as to the cession of the district of ten miles square. It authorizes particular states to cede, as well as congress to accept.
*The 2d section of the act of Maryland (1791, c. 45), has sufficient words to pass the right of soil as well as of jurisdiction. It declares, L “ that all that part of the territory, called Columbia, which lies within the limits of this state shall be, and the same is hereby acknowledged to be, for ever ceded and relinquished to the congress and government of the United States, in full and absolute right ” “ of soil,” and “ full and absolute ” “ exclusive jurisdiction” “of persons residing,” &c., with a proviso that the right of soil should not so vest in the United States as to affect the rights of individuals therein. This implies an intention that the right of soil should vest in the United States, wherever the rights of individuals should not be affected thereby. It is not only clear, therefore, that the state was competent to convey, and has used sufficient words of conveyance ; but it is equally clear, that it was its intention to convey, and that it has conveyed, to the United States, all its lands which were vacant at the date of the act (19th December 1791). It follows, therefore, that on the 3d of April 1792, the date of the survey, the state of Maryland had no vacant lands in the district of Columbia, liable to be surveyed under the warrant.
The act of 1791 gives the action only to a person whose title then existed (19th December 1791). Beatty’s title relates back no further than the 16th of April 1792, the date of the return of the certificate of survey, and the payment of the money to the state.
2.	As to the statute of limitations. We admit, that when a statute gives an entire new cause of action, it may not be barred by the act of limitations. But this statute only gives a new form of remedy upon an old cause of action. The declaration does not purport to be founded on the statute. It contains only a general count for money had and received to the plaintiff’s use. As to a trust not being within the act of limitations, the cases on that point are all in equity. But here, there was no trust; the parties were adverse claimants.
F. S. Key, in reply.—1. The state of Maryland had sovereign rights, and *private rights. She meant to grant only her sovereign rights. She presumed, that all the soil had been granted to individuals, and that *-there was no vacant land in the district. The terms she used are appropriate to a transfer of jurisdiction only. The 3d section of the act of 1791 is conclusive, that she did not mean to convey her private rights. By that section, the lots in Carrollsburgh and Hamburgh (small villages included within the lines of the city of Washington), which were the property of tho
61
106	SUPREME COURT	[Feb’y
Beatty v. Burnes.
state, were subjected to the same terms of trust as the other lots in the city. That is to say, one-half thereof was to be reconveyed to the state, and the other half to be sold for the use of the public.
The constitution of Maryland speaks of the land-office, and thereby continues all the rules and laws of that office. No lands could pass from the state but through the forms of the land-office. Beatty’s title relates back at least as far as the 16th of April 1792. But the special warrant was prior to the act of 1791, and the proviso of that statute saves all the rights of individuals, so that if Beatty had a right to locate his warrant in the city, before the date of the act, that act did not deprive him of that right. He had a contrary title then existing. But if he had not, the state had, and he claims as her assignee.
The statute did not mean to exclude the heirs and assigns of those who then had title from the benefit of the remedy provided.
2.	As to the statute of limitations. Burnes received the money as trustee. When he received it he knew of Beatty’s claim. 1 Saund. 37, 383 ; 4 Bac. Abr. 472.
Pinkney, as amicus curiae, stated, that he had never heard of the relation of title being carried farther back than to the certificate of survey ; even on a special warrant: for, although special, it may be located anywhere.
*March 1st, 1814. (Absent, Johnson, J., and Livingston, J.)
J Story, J., after stating the case, delivered the opinion of the court, as follows :—It is contended by the plaintiffs in error, that the direction of the circuit court was erroneous, 1. Because the plaintiffs’ intestate had a good and valid title to the land surveyed, under his patent, and was, therefore, entitled, under the 5th section of the Maryland statute of 1791, to the money received by the defendant’s intestate therefor. 2. That this right was not barred by the statute of limitations.
In support of the first point, the plaintiffs contend, that the land belonging to the state did not, by the cession of the territorial jurisdiction, under the statute of 1791, pass to the United States, and was, consequently, liable to be appropriated by individuals under warrants, pursuant to the laws of Maryland. That until 1801, the jurisdiction of Maryland continued over the whole ceded territory ; and titles, therefore, might legally be acquired therein, according to the public laws : and the patent of Beatty, being obtained in pursuance of those laws, gave him a complete and valid title. On the other hand, the defendant denies each of these positions, and further contends, that the plaintiffs are without the purview of the 5th section of the act of 1791, because that section extends only to titles then existing, and Beatty’s title did not commence until April 1792.
It is not necessary to consider the correctness of the positions urged by the respective parties, as to this point, because we are of opinion, that the case may well be decided upon the second point. The action for money had and received is clearly embraced by the statute of limitations ; and it is incumbent upon the plaintiffs to show that the present case forms an exception to its operation.
It is contended, that the present suit, being a statute remedy, is not *	, within the purview of the statute of limitations. *But we know of
J no difference in this particular between a common-law and statute 62
1814]	OF THE UNITED STATES.	108
Harford v. United States.
right. Each must be pursued according to the general rule of law, unless a different rule be prescribed by statute ; and where the remedy is limited to a particular form of action, all the general incidents of that action must attach upon it.* 1 Upon any other construction, it would follow, that the case would be without any limitation at all ; for it would be quite impossible, upon any acknowledged principles, when a right had assumed the shape of a claim in personam, to attach to it a limitation which exclusively applied to the reality. Now, the statute of limitations has been emphatically declared a statute of repose, and we should not feel at liberty to break in upon its general construction, by allowing an exception which has not acquired the complete sanction of authority.
It is further contended, that by the operation of the act of 1791, ch. 45, Burnes must be considered as a mere trustee of Beatty, and trusts are not within the statute of limitations. We are of a different opinion. The land in controversy was claimed by Burnes in his own right, and adversely to the plaintiff’s intestate. The money was received by him for his own use, and in his own right, as an original proprietor. He never admitted or acknowledged the title of the plaintiff, and no claim or demand was ever made upon him in his lifetime. So far then from being received in trust, it was expressly received under a peremptory denial of any trust or right in the opposite party. Nor was the statute meant to make the adverse possessor, without title, a trustee for the party having title. It only substituted the action of assumpsit for the ordinary legal remedy by ejectment; and the adverse possessor of the land could no more be deemed a trustee of the money, than he could be deemed a trustee of the land itself, for the benefit of the rightful owner, against whom he held by an adverse title.
The court are, therefore, of opinion, that the statute of limitations is a good bar, and therefore, that the judgment must be affirmed.
Judgment affirmed.
*Harford, claimant of 480 Pieces of Cotton Bagging v. [*109 United States, (a)
Landing of imported goods.
The penalty of the 50th section of the collection law of 2d March 1799, which requires a permit for the landing of goods imported, applies to goods the importation of which was prohibited by law.
This was an appeal from the Circuit Court for the district of South Carolina. The case was submitted, without argument.
Story, J., delivered the opinion of the court, as follows :—The principal question in this case is, whether goods and merchandise, the importation of which into the United States was prohibited by the act of 18th of April 1806 (2 U. S. Stat. 379), were within the purview of the 50th section of the collection act of 2d of March 1799 (1 Ibid. 665), so that the unlading of them without a permit, &c., was an offence subjecting them to forfeiture.
(a) March 1st, 1814. Absent, Johnson, Justice.
1 See Metz v. Hipps, 96 Penn. St. 15.
63
109	SUPREME COURT	[Feb’y
Brown v. United States.
It has been contended on behalf of the claimant, that they were not within the purview of the 50th section, because that section applies only to goods, wares and merchandise, the importation of which is lawful. To this construction, the court cannot yield assent. The language of the 50th section is, that “ no goods, wares or merchandise, &c., shall be unladen, &c., without a permitit is, therefore, broad enough to cover all goods, whether lawful or unlawful. The case, being then within the letter, can be extracted from forfeiture only by showing that it is not within the spirit of the section. To us, it seems clear, that the case is within the policy and mischief of the collection act, since the necessity of a permit is some check upon unlawful importations, and is one reason why it is required. The act of 1806 does not profess to repeal the 50th section of the collection act, as to the prohibited goods, and a repeal by implication ought not to be presumed, unless from the repugnance of the provisions, the inference be necessary and *	-. *unavoidable. No such manifest repugnance appears to the court;
J the provisions may well stand together and indeed serve as mutual aids. In fact, the very point now presented was decided by this court, in the case of Locke, claimant, v. United States, at February term 1813 (7 Cr. 339). The judgment of the circuit court is affirmed, with costs.
Judgment affirmed.
Armitz Brown v. United States.
Confiscation of enemy's property.
British property, found in the United States, on land, at the commencement of hostilities with Great Britain, cannot be condemned as enemy’s property, without a legislative act, authorizing its confiscation.1 The act of the legislature declaring war, is not snch an act.
Timber, floated into a salt-water creek, where the tide ebbs and flows, leaving the ends of the timber resting on the mud, at low water, and prevented from floating away at high water by booms, is to be considered as landed.
The Cargo of The Emulous, 1 Gallis. 562, reversed.
This was an appeal from the sentence of the Circuit Court of Massachusetts, which condemned 550 tons of pine timber, claimed by Armitz Brown, the appellant.
L. Lavis, for the appellant.—This is an appeal from the circuit court of Massachusetts, in which court, the property, consisting of about 550 tons of pine timber, twelve thousand staves, and eighteen tons of lathwood, were condemned. The libel states, that this cargo was loaded on board the Emulous, at Savannah, April 9th, 1812 ; that the cargo belonged to British subjects pthat the ship departed for Plymouth, in England, April 18th, in the same year, and put into New Bedford for repairs ; and that the cargo was there unladen, and remained there, until seized by Delano, as well on his own behalf, as on behalf of the United States. As to some of the allegations in the libel, there is no evidence whatever to support them ; the ship never departed for Plymouth, never put into New Bedford for repairs. The facts are these :
The property in question was the cargo of the American ship Emulous,
1 Conrad v. Waples, 96 U. S. 279.
64
1814]	OF THE UNITED STATES.	Ill
Brown v. United States.
and was seized as enemy’s property, about the 5th of April 1813, nearly a year after the same had been discharged from the ship. From the transcript in the case, it appears, that the Emulous was owned by John Delano and others, citizens of the United States ; that in February 1812, the owners, by their *agent, chartered the ship to Elijah Brown, as agent for Chris- r*. topher Ide, Brothers & Co., and James Brown, British merchants ; *-that by the charter-party, the ship was to proceed from Charleston, South Carolina, where she then lay, to Savannah, and there take on board a cargo of lumber, at a certain freight, stipulated in the charter-party, and proceed with the same to Plymouth, in England, to unload there, or at any other of his Britannic majesty’s dock-yards in England. The ship proceeded to Savannah, took on board the cargo mentioned in the libel, and was there stopped by the embargo of the 4th of April 1812. On the 25th of the same month of April, it was agreed between the master of the ship and the agent of the shippers, that the ship should proceed to New Bedford, where she was owned, with the cargo, and remain there, without prejudice to the charter-party ; which agreement is indorsed upon the back of the charter-party. The ship accordingly proceeded to New Bedford, and remained there until the latter part of May following, when the cargo was finally unladen and discharged from the ship. The staves and lathwood were landed and put on a wharf. The timber was put into a salt-water creek, which is not navigable, but where the tide ebbs and flows, and where the timber remained for safe-keeping until the time of the seizure. The timber was secured in this creek by booms extended across the entrance thereof, and fastened by stakes driven into the flats. On the 7th of November 1812, the property was sold to the claimant by E. Brown, the agent, in pursuance of the authority which he had for that purpose, as agent of the shippers, and in pursuance of the advice of Delano, who afterwards seized it, in the manner and for the purposes stated in the libel. This sale, the appellant contends, was made bond fide, for a valuable consideration, which has since been paid, and after notice thereof given to Delano, in whose possession the property then was. The seizure was not made until five months after the property had been sold to the present claimant, and nearly twelve months after it was discharged from the ship. The claimant, it is admitted, is a citizen of the United States. E. Brown, the agent, by whom the property was sold, is a citizen, of the United States, and James Brown, one of the owners of the cargo, is also a citizen of the United States, but resides in London and carries on trade and commerce in that city.
Upon these facts, the principal point which will be contended i-*. for by the counsel for the claimants is, that this property was lawfully acquired, before the declaration of war by the United States against Great Britain; and that, it being found here at the time of the breaking out of the war, under the faith of the government, it is not, by the modern law of nations, nor by any law of the United States, liable to confiscation.
This question ought not to be decided upon the rigorous principles and the ancient practice of the law of nations ; but according to the mitigated law of war, sanctioned by modern usage in civilized nations : for when the government of the United States was organized and finally established, it was not only its true policy, but its duty, “ to receive the law of nations in its modem state of purity and refinementper Judge Wilson, in the case
8 Cranch—5	65
112	SUPREME COURT	[Feb’y
Brown v. United States.
of TParc v. Hylton, 3 Dall. 281. It is contended by the counsel for the claimant in this case, that the principle and the usage adopted and sanctioned by the modern law of nations, is this, “ that enemy’s property, found in this country at the breaking out of a war, is not liable to confiscation.” A different practice, said to have prevailed in Great Britain with regard tc property in this situation, found afloat in their ports and harbors, will be hereafter considered.
The rule of the law of nations applicable to this case, is found in Vattel, p. 477. His words are, “ The sovereign declaring war, can neither detain the persons nor the property of those subjects of the enemy who are within his dominions at the time of the declaration. They came into his country under the public faith. By permitting them to enter and reside in his territories, he tacitly promised them full liberty and security.for their return. He is, therefore, bound to allow them a reasonable time for withdrawing with their effects ; and if they stay beyond the time prescribed, he has a aright to treat them as enemies, though as enemies unarmed. But if they ;are detained by an insurmountable impediment, a.s by sickness, he must, necessarily, and for the same reason, grant them a sufficient extension of the term.” In order to show the humane and liberal spirit with which the above i qi rule is adopted by sovereigns *in modern times, the same author adds, J “ At present, so far from being wanting in this duty, sovereigns carry their attention to humanity still further; so that foreigners who are subjects of the state against -which war is declared, are frequently allowed full time for the settlement of their affairs.”
Are not these just and equitable rules of the modern law of nations of authority in the judicial courts of the United States? Upon what principle or policy, are they to be rejected, and those of an age, dark, and even bar-barious in comparison with the present, adopted in their stead? Does it ■ comport with the interest and character of this government, to reject prin-< ciples and usages, calculated to ameliorate and mitigate the state of war and to promote the interest of commerce, which it appears have been cheerfully adopted by all the monarchies of Europe ? The contract which was entered into by the agents of the parties in this case, was made upon the presumption that, in case of war, the property would be safe. This presumption arose from the uniform practice, in similar cases, in all countries upon which the law of nations is binding.
It has been suggested, that this rule in Vattel is applicable only to such persons as may happen to be in the country at the time of the declaration of war. Such, indeed, is the letter of the rule : but when there is the same reason, there is the same law ; and no good reason can be assigned, why the property of an absent owner should not be protected, as well as that of those who may happen to be resident in the country declaring war. In addition to this, it may be observed, that the owners of this property were, in law, present, during the whole negotiation relative to this cargo, by their agent, E. Brown, by whom it was purchased, and who had the whole care and charge of it, at the time that war was declared.
If the correctness or authority of Vattel should be questioned, he will be found to be supported by other writers of high character. In Chitty’s Law of Nations, p. 67, it is thus written : “ In strict justice, the right of seizure can
66
1814]	OF THE UNITED STATES.	*114
Brown v. United States.
take effect *only on those possessions of the belligerent, which have come to the hands of his adversary, after the declaration of war.” And again, in p. 80, “ Such appears to be, at present, the law and practice of civilized nations, with respect to hostile property found within their dominions at the breaking out of war.” These opinions are not only fairly collected from modern writers upon the law of nations, but are entitled to particular respect as coming from a man of high character for his professional talents and legal science ; and who has done and written more to improve and reduce to system the common law of England, than any other writer upon that subject for the last thirty years.
The principles and practice of the modern law of nations here advocated, will also be found conformable to the common law. In Magna Charta, that venerable foundation of English law and liberty, it is provided, that merchant strangers, in the realm of England, at the beginning of a war, shall be protected from harm in body and goods, until it shall be made known to the high authorities of the nation, how British merchants should be treated in the enemy’s country, and they were to be dealt with according to such treatment. Magna Char ta, chap. 30. These provisions are commented upon, and emphatically eulogised by Montesquieu, vol. 2, p. 12.
Of similar character were the provisions of an ancient English statute, passed 27 Edw. HI., stat. 2, c. 17, in which it is enacted, “ that in case of war, merchants shall not be sent suddenly out of the kingdom, but may go out of the kingdom freely, with their goods, within forty days, and shall not be in anything hindered or disturbed in their passage, or to make profit of their merchandise, if they wish to sell them ; or, if in default of wind or ship, or any other adverse cause, they cannot go, they shall have other forty days, within which time they shall pass with their merchandise, or sell the same as before.”
It is respectfully contended, that no act or measure of the American government has ever indicated a disposition adverse to those humane and liberal provisions and usages of the common law, and of the law of nations. On the contrary, so far as the disposition and policy of *the government may be discerned by implication, it has manifested its entire *-acquiescence in, and its readiness to adopt them upon all proper occasions. The spirit and disposition of the government upon this subject, is apparent from the provisions in (I believe it may be said) every treaty which has been entered into since the establishment of the government. Articles for the protection and removal of the property of enemies found in this country at the breaking out of a war, are found in our treaties with France, Spain, Holland, Sweden, Prussia, Morocco, England and Algiers. It will not be contended, that the provisions of these treaties, especially that with England, can be binding, when the treaties themselves are not in force ; but the uniform practice of those governments, in agreeing to these provisions, is evidence of the highest nature, that the government of the United States have adopted, and mean to adhere to the modern law of nations in this respect ; that it approves the liberality of the modern usages, and rejects, and, I hope, I may add, abhors the rigorous rules and contracted principles of the ancient jurists ; that the spirit of the government, and the character of its policy, is to cherish and carry into practice every principle and every custom and
67
115	SUPREME COURT	[Feb’y
Brown v. United States.
usage, which is found favorable to commerce, and which will mitigate the evils incident to a state of war.
In the proceedings and measures of the government, since the war, there can be found no expression of its will, that property in the situation of this cargo, should be confiscated or claimed for the use of the government; on the contrary, there are indications of another and more benign complexion. By the act of July 6th, 1812, § 6, the president was authorized, within six months from the date of the act, “ to give passports for the safe transportation of any ship or property belonging to British subjects, then within the limits of the United States.” Nothing, therefore, can be more clear, than that it was not the wish or intention of government, to claim or confiscate property, belonging to the enemy, then in the United States. If such had been its policy, instead of the liberal provisions of this statute, provision would have been made in this statute, or in the act declaring war, not *1161 only exPressive *of the public will upon this subject, but expressly
J declaring British property then within the United States liable to confiscation.
By the provisions of this statute, it is apparent, that if this property had been on board a British ship, or if a British ship had been found in which to transport it, it would have come directly within the authority of the president, as to its safe transportation. Surely, then, it could never have been the intention of congress to have it confiscated, upon the ground that it had been lawfully on board an American ship, in the. regular course of trade, was there arrested by the embargo, and then, for the convenience of all parties, discharged from the ship, and placed in a proper situation for safekeeping, to abide the events of the embargo and the war.
The court will also notice, that, previous to the expiration of the six months allowed by the act of congress, above quoted, for the exportation of British property, this cargo had been sold, with the knowledge and approbation of the libellant. This transfer having been made bond fide, conferred other and new rights upon a third party, viz., the present claimant. The principle quoted and relied upon, that that transfer was void, upon the ground that it was made by an alien enemy, in time of war, was probably never contemplated or known by the parties to the contract; and this may furnish a satisfactory, though, perhaps, not strictly a legal reason, why this property was not exported under the president’s passport. At any rate, if the court should be satisfied, that this property is not liable to confiscation, either by the law of nations, or by any act of congress, they will not trouble themselves about the effect of the transfer, but leave the parties interested to settle that matter among themselves.
Before the court will condemn this property, they will search for some proof of a decided intention, on the part of the government, that such property should be confiscated. It appears, that all the acts of congress, so far as they can be interpreted with reference to this question, manifest a con-*1171 trary The act declaring *war, speaks no language adverse to the claim of the appellant. The prize act of the 26th of June 1812, does not even glance at property in this situation. Will the court assume the power, by implication, to condemn the property ; and this, too, against the most explicit declarations of the public will, so far as they can be collected from measures of an analogous nature ? Why is this case singled out ?
68
1814]	OF THE UNITED STATES.	117
Brown v. United States.
Why do not the district-attorneys enter the warehouses in the numerous sea-pbrts, and hunt for booty of this description ? Such a proceeding would be as legal and as liberal as the present, though, probably, attended with serious mischief to the country, if retaliatory proceedings and measures should be adopted by the enemy ; for it is a well-known fact, that the amount of American property in England, at the commencement of the war, was immensely greater than that of English property in America at the same period.
It was stated, in the argument below, that the question relative to the confiscation of debts, or choses in action, is illustrative of that which relates to the confiscation of goods. The modern usage and law of nations, and of our own country, relative to the confiscation of debts, are equally favorable to the claimant in this case.
In the first place, it is distinctly denied, that there exists any power to confiscate the private debts of the enemy, excepting by a positive act of congress. What figure would the attorney of the United States make, with a libel in the judicial courts, praying for a confiscation of a private debt ? The exclusive right of this kind of confiscation, and even of goods, is in the legislature ; per Chase, Justice, in the case of Ware v. Hylton, 3 Dall. 281. The question which has been discussed by the writers upon the law of nations, is, whether it be lawful for the sovereign thus to confiscate. And although it is admitted that he may do it, yet, “ in regard to the safety of commerce, all the sovereigns of Europe have departed from this rigor ; and as this custom has been generally received, he who would act contrary to it, would injure the public faith ; for strangers trusted his subjects upon the presumption that the general custom would prevail.” Vattel, lib. 3, ch. 5, § 77. *The laws and customs of the United States ought to be so r*ug expounded as to conform to the modern law of nations, which is L adverse to the confiscating of debts. Indeed, the confiscation of debts has become disreputable ; and it has been feelingly observed by a late learned judge of this court, that “ not a single confiscation of this kind stained the code of any European power engaged in the war which our revolution produced.” 3 Dall. 281.
It will be admitted, that the question relative to the confiscation of debts, or choses in action, is illustrative of the question relative to the confiscation of the private property of an enemy, found here under the faith of government, at the breaking out of the war. Indeed, the law and practice is, and ought to be, the same in both cases ; and until a law of congress shall be produced, confiscating property of this description, the judicial courts will not only proceed to do it, with great reluctance, but will never assume an authority of that kind, unless furnished with it by a legislative act, any more than in the confiscation of a private debt. In addition to all this, it seems to be now perfectly settled by the modern.law and practice of nations, that debts are never to be confiscated ; that it has become a disgraceful act in any government that does it ; that these debts are suspended, and the right to recover them necessarily taken away by the war ; but that upon the return of peace, the debts are revived, and the right to recover them perfectly restored.
The condemnation of this property is demanded upon the ground that the embargo of the 4th of April 1812, arrested and detained it, until the act
69
118	SUPREME COURT	[Feb’y
Brown v. United States.
of congress took place declaring war ; and that that act had a retroactive effect, and justifies the condemnation of this property. But to this it is answered, the embargo of the 4th of April was not a hostile, but a civil embargo ; and no such construction Was ever given to an embargo, not of a hostile character. That this embargo was not of this character is most manifest, from this, that express provision was made for the departure of any foreign ships or vessels, either in ballast or with the goods, wares and merchandise, on board of such foreign ship or vessel, when notified of the * act. It was, therefore, the *being laden on board a vessel of the
-■ United States, that prevented the departure of this property. If it had been on board a foreign, even a British, ship, it would not have been detained. That it was actually laden on board, at the time of the notice of the embargo, manifestly appears from the record. This, it is conceived, is a sufficient answer to the claim of the government to this property, upon the ground, that it was stopped by the embargo, and liable to confiscation by the retroactive operation of the act of congress declaring war. The authorities in support of the principles here contended for, respecting the difference between hostile and civil embargoes, must be familiar to the court, and need not be cited.
But the practice of the British government is relied upon, as a rule by which the court are to be governed in the present case. It is admitted, that the English courts of admiralty have condemned vessels detained in port by an embargo, and'found there at the breaking out of hostilities : but it is explicity denied that they have ever condemned property found on land, in that situation. 1 Rob. 228.
If, however, the English courts of admiralty have done wrong, and proceeded against the modern law of nations in these cases, this honorable court will not, for that reason, adopt so unjust a practice. The condemnation of property, arrested in the ports of Great Britain by an embargo, to which a hostile character is afterwards given by a subsequent declaration of war, appears to be a departure from the modern usages of nations, and cannot be justified by or reconciled with the spirit of those usages. But as they have never condemned property in this situation, except such has been found not only afloat, but in vessels detained in their ports by an embargo, their decisions can form no precedent in this case ; for the property which is the subject of this prosecution, was either on land, or in such a situation as that it could not be the subject upon which an embargo could operate ; or, in other words, the staves and lathwood were literally on the land ; and the pine timber so discharged from the ship, and so deposited, as to be entitled to the same protection as if actually landed and stored.
*	*The rule adopted in the English court of admiralty, as laid down
-• in 2 Rob. 211, is this : “ All vessels detained in port, and found there, at the breaking out of hostilities, are condemned, jure coronce, to the king ; and all coming in, after hostilities, not voluntarily by revolt, but ignorant of the war, are condemned as droits of admiralty. This rule, both in its import and application, has been adopted, it is conceived, only in cases of vessels and their cargoes found in the ports of Great Britain. There can be no reason for their application in this country, to property found on the land, or to property although water-borne yet, in the same situation, m reason and in fact, as if found literally on land.
70
1814]
OF THE UNITED STATES.
120
Brown v. United States.
Of this description is the property in question. By referring to the record, particularly the depositions of E. Brown and of Silas Allen, the condition of this property, from the time it was discharged from the ship to the time it was seized by Delano, may be learned, from whence it will appear, that the allegation in the libel, that the property was on the high seas, is wholly without foundation. The staves and lathwood were landed and on a wharf. With respect to these, there can be no doubt. The timber was discharged from the ship, in the month of May, previous to the declaration of war ; it is of such description that it did not admit of being stored ; it would have been injured by lying on the land ; and the only place proper to keep it in was the one selected, a creek, or small cove, where the tide ebbs and flows, but which was not navigable even for boats or scows ; for it seems it was necessary to clear it out to admit a scow into it. ’ Moreover, it was necessary to secure the entrance of this creek by booms or timber laid across its mouth, fastened by piles or stakes driven into thé flats. This timber was thus secured and stored in the usual way in which property of this description is managed ; and was, to all intents and purposes, as much lodged and impounded in this place, under a bailment, and in civil hands (1 Rob. 228), as if it had been in a ship-yard. It must, therefore, be a great stretch of power and prerogative, to extend the reason of the practice of Great Britain in condemning property found in its harbors and on board vessels, to property in the situation of that in question : and unless the practice of Great Britain has extended to the seizure *and con-demnation of enemies’ property found on land, at the time of break- L ing out of hostilities, no sanction can be derived from her practice in favor of the confiscation of this property.
The case, was submitted by the Attorney- General, upon the argument contained in the opinion of the honorable Judge Story, in the circuit court, which came up in the transcript of the record.
Wednesday, March 2d, 1814. (Present, all the judges.) Marshall, Ch. J., delivered the opinion of the court, as follows :—The material facts in this case are these :
The Emulous, owned by John Delano and others, citizens of the United States, was chartered to a company carrying on trade in Great Britain, one of whom was an American citizen, for the purpose of carrying a cargo from Savannah to Plymouth. After the cargo was put on board, the vessel was stopped in port by the embargo of the 4th of April 1812. On the 25th of the same month, it was agreed between the master of the ship and the agent of the shippers, that she should proceed with her cargo to New Bedford, where her owners resided, and remain there, without prejudice to the charter-party. In pursuance of this agreement, the Emulous proceeded to New Bedford, where she continued until after the declaration of war. In October or November, the ship was unloaded, and the cargo, except the pine timber, was landed. The pine timber was floated up a salt-water creek, where, at low tide, the ends of the timber rested on the mud*, where it was secured from floating out with the tide, by impediments fastened in the entrance of the creek. On the 7th of November 1§12; the cargo was sold by the agent of the owners, who is an American citizen, to the clainant, who is also an American citizen. On the 19th of April, a libel was filed by the
71
121	SUPREME COURT	[Feb’y
Brown v. United States.
attorney for the United States, in the district court of Massachusetts, against the said cargo, as well on behalf of the United States of America as for and in behalf of John Delano and of all other persons concerned. It does not *1991 appear *that this seizure was made under any instructions from the
-* president of the United States ; nor is there any evidence of its having his sanction, unless the libels being filed and prosecuted by the law-officer who represents the government, must imply that sanction. On the contrary, it is admitted, that the seizure was made by an individual, and the libel filed at his instance, by the district-attorney, who acted from his own impressions of what appertained to his duty. The property was claimed by Armitz Brown, under the purchase made in the preceding November.
The district court dismissed the libel. The circuit court reversed this sentence, and condemned the pine timber, as enemy property, forfeited to the United States. From the sentence of the circuit court, the claimant appealed to this court.
The material question made at bar is this : Can the pine timber, even admitting the property not to be changed by the sale in November, be condemned as prize of war ?
The cargo of the Emulous having been legally acquired and put on board the vessel, having been detained by an embargo, not intended to act on foreign property, the vessel having sailed before the war, from Savannah, under a stipulation to reland the cargo in some port of the United States, the relanding having been made with respect to the residue of the cargo, and the pine timber having been floated into shallow water, where it was secured and in the custody of the owner of the ship, an American citizen, the court cannot perceive any solid distinction, so far as respects confiscation, between this property and other British property found on land at the commencement of hostilities. It will, therefore, be considered as a question relating to such property generally, and to be governed by the same rule.
Respecting the power of government, no doubt is entertained. That war gives to the sovereign full right to take the persons and confiscate the property of the enemy wherever found, is conceded. The mitigations *1°31 *°^ this rigid rule, which the humane and wise policy of modern times
J has introduced into practice, will more or less affect the exercise of this right, but cannot impair the right itself. That remains undiminished, and when the sovereign authority shall choose to bring it into operation, the judicial department must give effect to its will. But until that will shall be expressed, no power of condemnation can exist in the court.
The questions to be decided by the court are : 1st. May enemy’s property, found on land at the commencement of hostilités, be seized and condemned as a necessary consequence of the declaration of war ? 2d. Is there any legislative act which authorizes such seizure and condemnation ?
Since, in this country, from the structure of our government, proceedings to condemn the property of an enemy, found within our territory at the declaration of war, can be sustained only upon the principle that they are instituted in execution of some existing law, we are led to ask—Is the declaration of war such a law ? Does that declaration, by its own operation, so vest the property of the enemy in the government, as to support proceedings for its seizure and confiscation, or does it vest only a right, the assertion of which depends on the will of the sovereign power ?
72
1814]	OF THE UNITED STATES.	123
Brown v. United States.
The universal practice of forbearing to seize and confiscate debts and credits, the principle universally received, that the right to them revives on the restoration of peace, would seem to prove that war is not an absolute confiscation of this property, but simply confers the right of confiscation. Between debts contracted under the faith of laws, and property acquired in the course of trade, on the faith of the same laws, reason draws no distinction ; and although, in practice, vessels, with their cargoes, found in port, at the declaration of war, may have been seized, it is not believed, that modern usage would sanction the seizure of the goods of an enemy on land, which *were acquired in peace, in the course of trade. Such a proceeding is rare, and would be deemed a harsh exercise of the rights of war. L But although the practice in this respect may not be uniform, that circumstance does not essentially affect the question. The inquiry is, whether such property vests in the sovereign, by the mere declaration of war, or remains subject to a right of confiscation, the exercise of which depends on the national will: and the rule which applies to one case, so far as respects the operation of a declaration of war on the thing itself, must apply to all others over which war gives an equal right. The right of the sovereign to confiscate debts being precisely the same with the right to confiscate other property found in the country, the operation of a declaration of war on debts and on other property found within the country must be the same. What then is this operation ?
Even Bynkershoek, who maintains the broad principle, that in war everything done against an enemy is lawful; that he may be destroyed, though unarmed and defenceless ; that fraud, or even poison, may be employed against him ; that a most unlimited right is acquired to his person and property ; admits that war does not transfer to the sovereign a debt due to his enemy ; and therefore, if payment of such debt be not exacted, peace revives the former right of the creditor ; “ because,” he says, “ the occupation which is had by war consists more in fact than in law.” He adds to his observations on this subject, “ let it not, however, be supposed, that it is only true of actions, that they are not condemned ipsojure, for other things also belonging to the enemy may be concealed and escape condemnation.”
Vattel says, that “ the sovereign can neither detain the persons nor the property of those subjects of the enemy who are within his dominions at the time of the declaration.” It is true, that this rule is, in terms, applied by Vattel to the property of those only who are personally within the territory at the commencement of hostilities ; but it applies equally to things in action and to things in possession ; and if war did, of itself, without any further exercise of the sovereign will, vest the property of the *enemy in the sovereign, his presence could not exempt it from this operation of *-war. Nor can a reason be perceived, for maintaining that the public faith is more entirely pledged for the security of property trusted in the territory of the nation in time of peace, if it be accompanied by its owner, than if it be confided to the care of others.
Chitty, after stating the general right of seizure, says, “ But, in strict justice, that right can take effect only on those possessions of a belligerent which have come to the hands of his adversary after the declaration of hostilities.” The modern rule, then, would seem to be, that tangible property belonging to an enemy and found in the country at the commencement of 73
125	SUPREME COURT	[Feb’y
Brown v. United States.
war, ought not to be immediately confiscated ; and in almost every commercial treaty, an article is inserted stipulating for the right to withdraw such property. This rule appears to be totally incompatible with the idea, that war does of itself vest the property in the belligerent government. It may be considered as the opinion of all who have written on thejws belli, that war gives the right to confiscate, but does not itself confiscate the property of the enemy ; and their rules go to the exercise of this right.
The constitution of the United States was framed at a time when this rule, introduced by commerce in favor of moderation and humanity, was received throughout the civilized world. In expounding that constitution, a construction ought not lightly to be admitted, which would give to a declaration of war an effect in this country, it does not possess elsewhere, and which would fetter that exercise of entire discretion respecting enemy property, which may enable the government to apply to the enemy the rule that he applies to us.
If we look to the constitution itself, we find this general reasoning much strengthened by the words of that instrument. That the declaration of war * has only the effect of *placing the two nations in a state of hostility,
-* of producing a state of war, of giving those rights which war confers ; but not of operating, by its own force, any of those results, such as a transfer of property, which are usually produced by ulterior measures of government, is fairly deducible from the enumeration of powers which accompanies that of declaring war. “ Congress shall have power ” “ to declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water.” It would be restraining this clause within narrower limits than the words themselves import, to say, that the power to make rules concerning captures on land and water, is to be confined to captures which are extra-territorial. If it extends to rules respecting enemy property found within the territory, then we perceive an express grant to congress of the power in question, as an independent substantive power, not included in that of declaring war.
The acts of congress furnish many instances of an opinion that the declaration of war does not, of itself, authorize proceedings against the persons or property of the enemy found, at the time, within the territory. War gives an equal right over persons and property : and if its declaration is not considered as prescribing a law respecting the person of an enemy found in our country, neither does it prescribe a law for his property. The act concerning alien enemies, which confers on the president very great discretionary powers respecting their persons, affords a strong implication that he did not possess those powers by virtue of the declaration of war. The “ act for the safe keeping and accommodation of prisoners of war,” is of the same character. The act prohibiting trade with the enemy, contains this clause : “And be it further enacted, that the president of the United States be, and he is hereby authorized to give, at any time within six months after *-]9h-i the passage *of this act, passports for the safe transportation of any
J ship or other property belonging to British subjects, and which is now within the limits of the United States.” The phraseology of this law shows that the property of a British subject was not considered by the legislature as being vested in the United States by the declaration of war ;
74
1814]	OF THE UNITED STATES.	127
Brown v. United States.
and the authority which the act confers on the president, is manifestly considered as one which he did not previously possess.
The proposition that a declaration of war does not, in itself, enact a confiscation of the property of the enemy, within the territorry of the belligerent, is believed to be entirely free from doubt. Is there in the act of congress, by which war is declared against Great Britain, any expression which would indicate such an intention ? That act, after placing the two nations in a state of war, authorizes the president of the United States to use the whole land and naval force of the United States to carry the war into effect, and “ to issue to private armed vessels of the United States, commissions or letters of marque and general reprisal against the vessels, goods and effects of the government of the united kingdom of Great Britain and Ireland, and the subjects thereof.” That reprisals may be made on enemy property found within the United States at the declaration of war, if such be the will of the nation, has been admitted ; but it is not admitted, that in the declaration of war, the nation has expressed its will to that effect.
It cannot be necessary to employ argument in showing that when the attorney for the United States institutes proceedings at law for the confiscation of enemy property found on land, or floating in one of our creeks, in the care and custody of one of our citizens, he is not acting under the authority of letters of marque and reprisal, still less under the authority of such letters issued to a private armed vessel *The “act concerning r*j28 letters of marque, prizes and prize goods,” certainly contains noth- *-ing to authorize this seizure.
There being no other act of congress which bears upon the subject, it is considered as proved, that the legislature has not confiscated enemy property, which was within the United States at the declaration of war, and that this sentence of condemnation cannot be sustained.
One view, however, has been taken of this subject which deserves to be further considered. It is urged, that, in executing the laws of war, the executive may seize, and the courts condemn, all property which, according to the modern law of nations, is subject to confiscation, although it might require an act of the legislature to justify the condemnation of that property which, according to modern usage, ought not to be confiscated. This argument must assume for its basis the position, that modern usage constitutes a rule which acts directly upon the thing itself, by its own force, and not through the sovereign power. This position is not allowed. This usage is a guide which the sovereign follows or abandons at his will; the rule, like other precepts of morality, of humanity, and even of wisdom, is addressed to the judgment of the sovereign ; and although it cannot be disregarded by him, without obloquy, yet it may be disregarded.
The rule is, in its nature, flexible ; it is subject to infinite modification ; it is not an immutable rule of law, but depends on political considerations which may continually vary. Commercial nations, in the situation of the United States, have always a considerable quantity of property in the possession of their neighbors. When war breaks out, the question, what shall be done with enemy property, in our country, is a question rather of policy than of law. The rule which we apply to the property of our enemy, will be applied by him to the property of *our citizens. Like all other questions of policy, it is proper for the consideration of a department *-
75
129	SUPREME COURT	[Feb’y
Brown v. United States, which can modify it at will; not for the consideration of a department which can pursue only the law as it is written. It is proper for the consideration of the legislature, not of the executive or judiciary.
It appears to the court, that the power of confiscating enemy property is in the legislature, and that the legislature has not yet declared its will to confiscate property which was within our territory at the declaration of war. The court is, therefore, of opinion, that there is error in the sentence of condemnation pronounced in the circuit court in this case, and doth direct that the same be reversed and annulled, and that the sentence of the district court be affirmed.
Story, J. (dissenting.)—In this case, I have the misfortune to differ in opinion from my brethren ; and as the grounds of the decree were fully stated in an opinion delivered in the court below, I shall make no apology for reading it in this place.
“ This is a prize allegation filed by the district-attorney, in behalf of the United States, and of John Delano, against 550 tons of pine timber, part of the cargo of the American ship Emulous, which was seized as enemies’ property, about the 5th day of April 1813, after the same had been discharged from said ship, and while afloat in a creek or dock at New Bedford, where the tide ebbs and flows.
“ From the evidence in this case, it appears, that the ship Emulous is owned by the said John Delano, John Johnson, Levi Jenny and Joshua Delano, of New Bedford, and citizens of the United States. On the 3d day of February 1812, the owners, by their agents, entered into a charter-party with Elijah Brown, as agent of Messrs. Christopher Idle, Brother & Co., and James Brown, of London, merchants, for said ship, to proceed from the port of Charleston, South Carolina (where the ship then lay), to Savannah, in Georgia, and there take on board a cargo of timber and staves, at a cer-*1301	stipulated in the charter-party, and proceed with the
J same to Plymouth, England, “ for orders to unload there, or at any other of his majesty’s dock-yards in England.” The ship accordingly proceeded to Savannah, took on board the agreed cargo, and was there stopped by the embargo laid by congress on the 4th of April 1812. On the 25th of the same April, it was agreed between Mr. E. Brown and the master of the ship, that she should proceed with the cargo to, and lay at New Bedford, without prejudice to the charter-party. The ship accordingly proceeded for New Bedford, and arrived there, in the latter part of May 181$, where, it seems, the cargo was finally, but the particular time is not stated, unloaded by the owners of the ship, the staves put into a warehouse, and the timber into a salt-water creek or dock, where it has ever since remained, waterborne, under the custody of said John Delano, by whom the subsequent seizure was made, for his own benefit and the benefit of the United States. On the 7th of November 1812, Mr. Elijah Brown, as agent for the British owners (one of whom, James Brown, is his brother), sold the whole cargo to the present claimant, Mr. Armitz Brown (who it should seem is also his brother), for 82433.67, payable in nine months, for which the claimant gave his note accordingly. The master of the ship, Capt. Allen, swears that, at the time of entering into the charter-party, Mr. Elijah Brown stated to him, that the British owners had contracted with the British gov-76
1814]	OF THE UNITED STATES.	130
Brown v. United States.
ernment to furnish a large quantity of timber, to be delivered in some of his majesty’s dock-yards.
“ Besides the claim of Mr. Brown, there is a claim interposed' by the owners of the ship Emulous, praying for an allowance to them of their expenses and charges in the premises.
“ A preliminary exception has been taken to the libel, for a supposed incongruity in blending the rights of the United States and of the informer, in the manner of a qui tarn action at the common law. I do not think this exception is entitled to much consideration. It is, at most, but an irregularity, which cannot affect the nature of the proceedings, or oust the jurisdiction of this court. If the informer cannot legally *take any interest, the r#1«1 United States have still a right, if their title is otherwise well founded, . to claim a condemnation : nor would a proceeding of this nature be deemed a fatal irregularity, in courts having jurisdiction of seizures, whose proceedings are governed by much more rigid rules than those of the admiralty. It is a principle clearly settled at the common law, that any person might seize uncustomed goods to the use of himself and the king, and thereupon inform of the seizure ; and if, in the exchequer, the informer be not entitled to any part, the whole shall, on such information, be adjudged to the king. For this doctrine we have the authority of Lord Hale (Harg. Law Tracts 227), and the solemn judgment of the court in Roe v. Poe, Hardr. 185, and Malden v. Bartlett, Parker 105. The same rule most undoubtedly exists in the prize court, and, as I apprehend, applies with greater latitude. All property captured belongs originally to the crown ; and individuals can acquire a title thereto, in no other manner than by grant from the crown. The Elsebe, 5 Rob. 173 ; 11 East 619 ; The Maria Ft•ancoise, 6 Rob. 282. This, however, does not preclude the right to seize; on the contrary, it is an indisputable principle in the English prize courts, that a subject may seize hostile property, for the use of the crown, wherever it is found ; and it rests in the discretion of the crown, whether it will or will not ratify and consummate the seizure, by proceeding to condemnation. But to the prize court it is a matter of pure indifference, whether the seizure proceeded originally from the crown, or has been adopted by it; and whether the crown -would take jure coronce, by its transcendant prerogative, or jure admiralitatis, as a flower annexed by its grant to the office of lord high admiral. The cases of captures. by non-commissioned vessels, by commanders on foreign stations, anterior to war, by private individuals, in port or on the coasts, and by naval commanders on shore on unauthorized expeditions, are all very strong illustrations of the principle. The Aquila, 1 Rob. 37 ; The Twee Gesuster, 2 Ibid. 284, note ; The Rebeckah, 1 Ibid. 227; The Gertruyda, 2 Ibid. 211 ;
Melomane, 5 Ibid. 41 ; The Charlotte, 4 Ibid. 282 ; The Richmond, 5 Ibid. 325 ; Thorshaven, 1 Edw. 102 ; Hale, in Harg. Law Tracts, ch. 28, p. 245. And in cases where private captors seek condemnation to themselves, it is the settled course of the court, on failure of their title, to decree condemnation to the crown or the admiralty, as the circumstances >■*. require. The Walsingham Packet, 2 Rob. 77 ; The Etrusco, 4 Ibid. *• 262, note ; and the cases cited supra.
“ Nor can I consider these principles of the British courts a departure rom the law of nations. The authority of Puffendorf and Vattel are intro-uced, to show that private subjects are not at liberty to seize the property
132	SUPREME COURT	[Feb’y
Brown v. United States.
of enemies, without the commission of the sovereign, and if they do, they are considered as pirates. But when attentively considered, it strikes me, that, taking the full scope of these authors, they will not be found to support so broad a position. Puff. lib. 8, ch. 6, § 21 ; Vattel, lib. 3, * ch. 15, § 223-27. Vattel himself admits (§ 224) that the declaration of war, which enjoins the subjects at large to attack the enemy’s subjects, implies a general order ; and that to commit hostilities on our enemy, without an order from our sovereign, after the war, is not a violation so much of the law of nations as of the public law applicable to the sovereignity of our own nation (§ 225). And he explicitly states (§ 226), that, by the law of nations, when once two nations are engaged in war, all the subjects of the one may commit hostilities against those of the other, and do them all the mischief anthorized by the state of war. All that he contends for is, that though, by the declaration, all the subjects in general are ordered to attack the enemy, yet that, by custom, this is usually restrained to persons acting under commission ; and that the general order does not invite the subjects to undertake any offensive expedition without a commission or particular order (§ 227); and that if they do, they are not usually treated by the enemy in a manner as favorable as other prisoners of war (§ 226). And Vattel (§ 227) explicitly declares, that the declaration of war ‘ authorizes, indeed, and even obliges, every subject, of whatever rank, to secure the persons and things belonging to the enemy, when they fall into his hands.’ And he then goes on to state cases in which the authority of the sovereign may be presumed (§ 228). The whole doctrine of Vattel, fairly considered, amounts to no more than this, that the subject is not required, by the mere declaration of war, to originate predatory expeditions against the enemy ; that he is not authorized to wage war, contrary to the will of his own sovereign ; and that, though the ordinary declaration of war imports a general authority to *iooi attack the enemy *and his property, yet custom has so far restrained
J its meaning, that it is, in general, confined to persons acting under the particular or constructive commission of the sovereign. If, therefore, the subject do undertake a predatory expedition, it is an infringement of the public law of his own country, whose sovereignty he thus invades, but it is not a violation of the law of nations, of which the enemy has a right to complain. But if the property of the enemy fall into the hands of a subject, he is bound to secure it.
“For every purpose applicable to the present case, it does not seem necessary to controvert these positions ; and whatever may be the correctness of the others, I am perfectly satisfied, that the position is well founded, that no subject can legally commit hostilities, or capture property of an enemy, when, either expressly or constructively, the sovereign has prohibited it. But suppose, he does, I would ask, if the sovereign may not ratify his proceedings ; and thus, by a retroactive operation, give validity to them? Of this, there seems to me no legal doubt. The subject seizes at his peril, and the sovereign decides, in the last resort, whether he will approve or disapprove of the act. Thorshanen, 1 Edw. Adm. 102.
“ The authority of Puffendorf is still less in favor of the position of the claimant’s counsel. In the section cited (lib. 8, ch. 6, § 21), Puffendorf considers the question to whom property captured in war belongs ; a question also examined by Vattel in the 229th section of the book and chapter above
78
1814]	OF THE .UNITED STATES.	133
Brown v. United States.
referred to. In the course of that discussion, Puffendorf observes, ‘ that it may be very justly questioned, whether everything taken in war, by private hostilities, and by the bravery of private subjects that have no commission to warrant them, belongeth to them that take it. For this is also a part of the war, to appoint what persons are to act in a hostile manner against the enemy, and how far : and in consequence, no private person hath power to make devastations in an enemy’s country, or to carry off spoil or plunder, without permission from his sovereign : and the sovereign is to decide how far private men, when they are permitted, are to use that liberty of plunder; and whether they are to be the sole proprietors in the booty, or only to share a part of it: so that all a private adventurer in war can pretend to, is no more than *what his sovereign will please to allow him ; for to be a p . soldier and to act offensibly, a man must be commissioned by public authority.’ As to the point upon which Puffendorf here expresses his doubts, I suppose, that no person, at this day, entertains any doubts. It is now clear, as I have already stated, that all captures in war enure to the sovereign, and can become private property only by his grant. But is there anything in Puffendorf to authorize the doctrine, that the subject, so seizing property of the enemy, is guilty of a very enormous crime—of the odious crime of piracy ? And is there, in this language, anything to show that the sovereign may not adopt the acts of his subjects, in such a case, and give them the effect of full and perfect ratification ? It has not been pretended, that I recollect, that Grotius supports the position contended for. To me it seems pretty clear, that his opinions lean rather the other way, viz., to support the indiscriminate right of captors to all property captured by them. Grotius, lib. 3, ch. 6, § 2, § 10, § 12.
“ Bynkershoek has not discussed the question in direct terms. In one place (Bynk. Pub. Juris, ch. 3), he says, that he is not guilty of any crime, by the laws’of war, who invades a hostile shore, in hopes of getting booty. It is true, that in another place (Ibid. ch. 20), he admits, in conformity to his doctrine elsewhere (Ibid. ch. 17), that if an uncommissioned cruizer should sail for the purpose of making hostile captures, she might be dealt with as a pirate, if she made any captures except in self-defence. But this he expressly grounds upon the municipal edicts of his own country in relation to captures made by its own subjects. And he says, every declaration of war not only permits but expressly orders all subjects to injure the enemy by every possible means ; not only to avert the danger of capture, but to capture and strip the enemy of all his property. And, looking to the general scope of his observations (Ibid. ch. 3, 4, 16, 17), I think, it may, not unfairly, be argued, that independent of particular edicts, the subjects of hostile nations might lawfully seize each other’s property, wherever found : at least, he states nothing from which it can be inferred that the sovereign niight not avail himself of property captured from the enemy by uncommissioned subjects.
“ On *the whole, I hold, that the true doctrine of the law of nations, ■-* ound in foreign jurists, is, that private citizens cannot acquire to *-themselves a title to hostile property, unless it is seized under the com-inission of their sovereign; and that, if they depredate upon the enemy, ey act upon their peril, and may be liable to punishment, unless their acts are adopted by their sovereign. That, in modern times, the mere declare-
79
135	SUPREME COURT	[Feb’y
Brown v. United States.
tion of war is not supposed to clothe the citizens with authority to capture hostile, property, but that they may lawfully seize hostile property, in their own defence, and are bound to secure, for the use of the sovereign, all hostile property which falls into their hands. If the principles of British prize law go further, I am free to say, that I consider them as the law of this country.
“ I have been led into this discussion of the doctrine of foreign jurists, further than I originally intended; because the practice of this court in prize proceedings must, as I have already intimated, be governed by the rules of admiralty law, disclosed in English reports, in preference to the mere dicta of elementary writers. I thought it my duty, however, to notice these authorities, because they seem generally relied on by the claimant’s counsel. In my judgment, the libel is well and properly brought; at least, for all the purposes of justice between the parties before the court; and I overrule the exception taken to its sufficiency.
“ Having disposed of this objection, I come now to consider the objection made by the United States against the sufficiency of the claim of Mr. Brown ; and I am entirely satisfied, that his claim must be rejected. It is a well-known rule of the prize court, that the onus prohandi lies on the claimant : he must make out a good and sufficient title, before he can call upon the captors to show any ground for the capture. The Walsingham Packet, 2 Rob. 77. If, therefore, the claimant make no title, or trace it only by illegal transactions, his claim must be rejected, and the court left to dispose of the cause, as the other parties may establish their rights. In the present case, Mr. Brown claims a title by virtue of a contract and .sale, made by alien enemies, since the war : I say, by alien enemies ; for it is of no impor-* tance what, the character of the agent is ; the transaction *must have
J the same legal construction as though made by the aliens themselves. Now, admitting that this sale was not colorable, but bond fide, which, however, I am not, at present, disposed to believe, still it was a contract made with enemies, pending a known war ; ■ and therefore invalid. No principle of national or municipal law is better settled, than that all contracts with an enemy, made during war, are utterly void.. This principle has grown hoary under the reverend respect of centuries (19 Edw. IV. 6, cited Theol. Dig. lib. 1, ch. 6, § 21. Ex parte Eonsmaker, 13 Ves. jr. 71 ; Eriston v. Towers, 6 T. R. 45), and cannot now be shaken, without uprooting the very foundations of national law. Bynk. Quaest. Pub. Juris, ch. 3.
“I, therefore, altogether reject the claim interposed by Mr. Brown. What, then, is to be done with the property ? It is contended, on the part of the United States, that it ought to be condemned to the United States, with a recompense, in the nature of salvage, to be awarded to Mr. Delano. On the part of the claimant’s counsel (who, under the circumstances, must be considered as arguing as amicus curies to inform the conscience of the court), it is contended, 1. That this court, as a court of prize, has no proper jurisdiction over the cause. 2. That if it have jurisdiction, it cannot award condemnation to the United States, for several reasons. 1st. Because, by the law of nations, as now understood, no government can lawfully confiscate the debts, credits or visible property of alien enemies, which have been contracted or come into the country during peace ; 2d. .Because, if the law of nations does not, the common law does afford such immunity from con-
80
1814]	OF THE UNITED STATES.	136
Brown v. United States.
fiscation to property situated like the present; 3d. Because, if the right to confiscate exist, it can be exercised only by a positive act of congress, who have not yet legislated to this extent; 4th. Because, if the last position be not fully accurate, yet, at all events, this process, being a high preroga,-tive power, ought not to be exercised, except by express instructions from the president, which are not shown in this case.
“ Some of these questions are of vast importance and most extensive operation ; and I am exceedingly obliged to the gentlemen who have argued them with so *much ability and learning, for the light which they have thrown upon a path so intricate and obscure. I have given I ‘ these questions as much consideration as the state of my health and the brevity of time would allow ; and I shall now give them a distinct and separate discussion, that I may, at least, disclose the sources of my errors, if any, and enable those who unite higher powers of discernment, with more extensive knowledge, to give a more exact and just opinion.
“ And first, as to the jurisdiction of this court in matters of prize. This depends partly on the prize act of 26th June 1812, ch. 107, § 6, and partly on the true extent and meaning of the admiralty and maritime jurisdiction conferred on the courts of the United States. The act of 26th June 1812, ch. 107, provides, that in all cases of captured vessels, goods and effects, which shall be brought within the jurisdiction of the United States, the district court shall have exclusive original cognisance thereof, as in civil causes of admiralty and maritime jurisdiction. The act of 18th June 1812, ch. 102,, declaring war, authorizes the president to issue letters of marque and reprisal to private armed ships, against the vessels, goods and effects of the British government and its subjects ; and to use the whole land and naval force of the United States to carry the war into effect. In neither of these acts, is there any limitation as to the places where captures may be made, on the land or on the seas ; and of course, it would seem that the right of the-courts to adjudicate respecting captures would be co-extensive with such captures, wherever made, unless the jurisdiction conferred is manifestly confined by the former act to captures made by private armed vessels. It is not, however, necessary closely to sift this point, as it may now be considered as settled law, that the courts of the United States, under the judicial act of 30th September 1789, ch. 20, have, by the delegation of all civil causes of admiralty and maritime jurisdiction, at least, as full jurisdiction of all causes of prize as the admiralty in England. Glass et al. v. The Sloop Betsey et al., 3 Dall. 6 ; Talbot v. Jansen, Ibid. 133 ; Penhallow et al. v. Doane's Administrators, Ibid. 54 ; Jennings v. Carson, 4 Cranch 2.
“ Over what captures, *then, has the admiralty jurisdiction as a prize court ? This is a question of considerable intricacy, and has >• not as yet, to my knowledge, been fully settled. It has been doubted, ■whether the admiralty has an inherent jurisdiction of prize, or obtains it by virtue of the commission uaually issued on the breaking out of war. That the exercise of the jurisdiction is of very high antiquity and beyond the time of memory, seems to be incontestible. It is found recognized in various articles of the black book cf the admiralty, in public treaties and proclamations of a very early date, and in the most venerable relics of ancient jurisprudence. See Rob. Coll. Marit., Intro, p. 6, 7 ; Ibid., Instructions, 3 Hen. VIII. p. io, art. 18, &c.; Ibid. p. 12, note ; Edw. III., A. D. 1343 ;
8 Cranch—6	81
138	SUPREME COURT	. [Feb’y
Brown v. United States.
Treaty Hen. VII. and Charles VIII., A. D. 1497 ; Rob. Coll. Marit, p. 83, and p. 98, art. 8 ; Ibid. p. 189, note ; Roughton, art. 19, 20, &c., passim. In Lindo v. Rodney, 2 Doug. 613, note, Lord Mansfield, in discussing the subject, admits the immemorial antiquity of the prize jurisdiction of the admiralty ; but leaves it uncertain, whether it was coeval with the instance jurisdiction, and whether it is constituted by special commission, or only called into exercise thereby. After the doubts of so eminent a judge, it would not become me to express a decided opinion. But taking the fact that, in the earliest times, the jurisdiction is found in the possession of the admiralty, independent of any known special commission ; that, in other countries, and especially in France, upon whose ancient prize ordinances the administration of prize law seems, in a great measure to have been modelled ( Vide Ordon. of France, A. D. 1400, Rob. Coll. Marit, p. 75; Ordon. of France, A. D. 1584, Ibid. p. 105/Treaty Henry VIL and Charles VIII., Ibid. p. 83, and Rob. note, Ibid. 105), the jurisdiction has uniformly belonged to the admiralty ; there seems very strong reason to presume that it always constituted an ordinary, and not an extraordinary, branch of the admiralty powers and so I apprehend it was considered by the supreme court of the United States, in Glass et al. v. The Retsey, 3 Dall. 6.
“ However this question may be, as to the right of the admiralty to take cognisance of mere captures made on the land, exclusively by land forces, as to which I give no opinion, it is very clear, that its jurisdiction is not *confined to mere captures at sea. The prize jurisdiction does not
J depend upon locality, but upon the subject-matter. The words of the prize commission contain authority to proceed upon all and all manner of captures, seizures, prizes and reprisals of all ships and goods that are and shall be taken. The admiralty, therefore, not only takes cognisance of all captures made at sea, in creeks, havens and rivers, but also of all captures made on land, where the same have been made by a naval force, or by co-operation with a naval force. This exercise of jurisdiction is settled by the most solemn adjudications. Key and Hubbard v. Pearse, cited in Le Caux v. Eden, 2 Doug. 606 ; Lindo v. Rodney, Ibid. 613, note ; The Capture ■ of the Cape of Good Hope, 2 Rob. 274 ; The Stella del Norte, 5 Ibid. 349 ; The Island of Trinidad, Ibid. 92 ; Thorshaven, 1 Edw. 102 ; The Capture of Chrinsurah, 1 Acton 179 ; The Rebeckah, 1 Rob. 227 ; The Gertruyda, 2 Ibid. 211 ; The Maria Françoise, 6 Ibid. 282.
“ Such, then, being the acknowledged extent of the prize jurisdiction of the admiralty, it is, at least, in as ample an extent, conferred on the couits of the United States. For the determination, therefore, of the case before the court, it is not necessary to claim a more ample jurisdiction ; for the capture or seizure, though made in port, was made while the property was water-borne. Had it been landed and remained on land, it would have deserved consideration, whether it could have been proceeded against as prize, under the admiralty jurisdiction, or whether, if liable to seizure an condemnation in our courts, the remedy ought not to have been pursue J a process applicable to municipal confiscations. On these points I gwf no opinion. See the case of The Oester Eems, cited in The Two Friencs, 1 Rob. 284, note ; Hale, de Portibus Maris, &c., in Harg. Law Tracts, ch. 28, p. 245, &c. ; Parker 267.
« Having disposed of the question as to the jurisdiction of th. s court,
82
1814]	OF THE UNITED STATES.	139
Brown v. United States.
I come to one of a more general nature ; viz : Whether, by the modern law of nations, the sovereign has a right to confiscate the debts due to his enemy, or the goods of his enemy found within his territory at the commencement of the war ? I might spare myself the consideration of the question as to debts ; but, as it *has been ably argued, I will submit some views riC5 . respecting it, because they will illustrate and confirm the doctrine *-applicable to goods. It seems conceded, and indeed, is quite too clear for argument, that, in former times, the right to confiscate debts was admitted as a doctrine of national law. It had the countenance of the civil law (Dig. lib. 41, tit. 1 ; Ibid. lib. 49, tit. 15), of Grotius (De jure belli et pacis, lib. 3, ch. 2, § 2, ch. 6, § 2, ch. 7. § 3, 4, ch. 13, § 1, 2), of Puffendorff (De jure Nat. et Nat. lib. 8, ch. 6, § 23), and lastly, of Bynkershoek (Quaest. Pub. Juris, lib. 1, ch. 7), who is himself of the highest authority, and pronounces his opinion in the most explicit manner.
“ Down to the year 1737, it may be considered as the opinion of jurists, that the right was unquestionable. It is, then, incumbent on those who assume a different doctrine, to prove, that, since that period, it has by the general consent of nations, become incorporated into the code of public law. I take it upon me to say, that no jurist of reputation can be found who has denied the right of confiscation of enemies’ debts. Vattel has been supposed to be the most favorable to the new doctrine. He certainly does not deny the right to confiscate ; and if he may be thought to hesitate in admitting it, nothing more can be gathered from it, than that he considers that, in the present times, a relaxation of the rigor of the law has been in practice among the sovereigns of Europe. Vattel, lib. 3, ch. 5, § 77. Surely, a relaxation of the law, in practice, cannot be admitted to constitute an abolition in principle, when the principle is asserted, so late as 1737, by Bynkershoek, and the relaxation shown by Vattel in 1775. In another place, however, Vattel, speaking on the subject of reprisals, admits the right to seize the property of the nation or its subjects, by way of reprisal, and, if war ensues, to confiscate the property so seized. The only exception he makes, is, of property which has been deposited in the hands of the nation, and entrusted to the public faith ; as is the case of property in the public funds. Vattel, lib. 2, ch. 18, § 342-44. The very exception evinces pretty strongly the opinion of Vattel as to the general rule. Of the character of Vattel as a jurist, I shall not undertake to express an opinion. That he has great merit is conceded ; though a learned civilian, Sir James Mackintosh, informs us, that he has fallen into great mistakes in important “practical discussions of public law.” *Discourse on the Law of Nations, p. 32, note. But if he is. singly to r,.. .. be opposed to the weight of Grotius and Puffendorf, and above all *■ Bynkershoek, it will be difficult for him to sustain so unequal a contest.
“I have been pressed with the opinion of a very distinguished writer of our own country on this subject. Camillus, No. 18 to 23, on the British Treaty of 1794. I admit, in the fullest manner, the great merit of the' argument which he has adduced against the confiscation of private debts due to enemy subjects. Looking to the measure, not as of strict right, but as of sound policy and national honor, I have no hesitation to say, that the argument is unanswerable. He proves incontrovertibly, what the highest interest 0 nati°ns dictates, with a view to permanent policy : but I have not been a e t° perceive the proofs by which he overthrows the ancient principle
83
141	SUPREME COURT	[Feb’y
Brown v. United States.
In respect to the opinion of Grotius, quoted by him in No. 20, as indicating a doubt by Grotius of his own principles, I cannot help thinking, that the learned writer has himself fallen into a mistake. Grotius, in the place referred to (lib. 3, ch. 20, § 16), is not adverting to the right of confiscation, but merely to the general results of a treaty of peace. He says (§ 15), that, after a peace, no action lies for damages done in the war; but (§ 16) that debts due before the war are not, by the mere operations of the war, released, but remain suspended during the war, and the right to recover them revives at the peace. It is impossible to doubt the meaning of Grotius, when the preceding and succeeding sections are taken in connection. Grotius, therefore, is not inconsistent with himself, nor is ‘ Bynkershoek more inconsistent’; for the latter explicitly avows the same doctrine, but considers it inapplicable to debts confiscated during the war ; for these are completely extinguished. Bynk. Quaest. Pub. Juris, ch. 1.
“ It is supposed by the same learned writer, that the principle of confiscating debts had been abandoned for more than a century. That the practice was intermitted, is certainly no very clear proof of an abandonment of the principle. Motives of policy and the general interests of commerce may combine to induce a nation not to enforce its strict rights, but it ought not, therefore, to be construed to release them. It may, however, be well
.9-> doubted, if the practice is quite so. uniform as it is supposed. *The J case of the Silesia loan, which exercised the highest talents of the English nation, is an instance to the contrary, almost within half a century (in 1752). In the very elaborate discussions of national law to which that case gave birth, there is not the slightest intimation, that the law of nations prohibited a sovereign from confiscating debts due to his enemies, even where the debts were due from the nation ; though there is a very able statement of its injustice in that particular case : and the English memorial admits, that when sovereigns or states borrow money from foreigners, it is very commonly expressed in the contract, that it should not be seized as reprisals, or in case of war. Now, it strikes me, that this very circumstance shows in a strong light the general opinion as to the ordinary right of confiscation.
“ The stipulations of particular treaties of the United States have been cited, in corroboration of their general doctrine, by the claimant’s counsel. These treaties certainly show the opinion of the government as to the impolicy of enforcing the right of confiscation against debts and actions. See Treaty with Great Britain, 1794, art. 10 ; with France 1778, art. 20 ; with Holland, 8th October 1782, art. 18 ; with Prussia, 11th July 1799, art. 23 ; with Morocco, 1787, art. 24. But I cannot admit them to be evidence for the purpose for which they have been introduced. It may be argued, with quite as much, if not greater force, that these stipulations imply an acknowledgment of the general right of confiscation, and provide for a liberal relaxation between the parties. I hold, with Bynkershoek (Quaest. Pub. Jur. ch. 7), that where such treaties exist, they must be observed; where there are none, the general right prevails.
“ It has been further supposed, that the common law of England is against the right of confiscating debts ; and the declaration of Magna Charta, ch. 30, has been cited, to show the liberal views of the British constitution. This declaration, so far as is necessary to the present purpose, is
84
1814]	OF THE UNITED STATES.	142
Brown v. United States.
as follows : £ If they (i. e., foreign merchants) be of a land making war against us, and be found in our realm, at the beginning of the war, they shall be attached, without harm of body or goods (rerum), until it be known unto us, or our chief justice, how our merchants be entreated, then, in the land making war against us, and if our merchants be well entreated there, theirs shall be likewise with us.’ I *quote the translation of Lord r*14g Coke (2 Inst. 27). This would certainly seem to be a very liberal *-provision ; and if its true-construction applied to all property and persons, as well transiently in the country, as domiciled and fixed there, it would certainly be entitled to all the encomiums which it has received. Montesq. Spirit of Laws, lib. 20, ch. 14. How far it is now considered as binding, in relation to vessels and goods found within the realm, at the commencement of the war, I shall hereafter consider. It will be observed, however, that this article of Magna Charta, does not protect the debts or property of foreigners who are without the realm : it is confined to foreigners within the realm, upon the public faith on the breaking out of the war. Now, it seems to be the established rule of the common law, that all choses in action, belonging to an enemy, are forfeitable to the crown ; and that the crown is at liberty, at any time during the war, to institute a process, and thereby appropriate them to itself. This was the doctrine of the year books, and stands confirmed by the solemn decision of the exchequer, in the Attorney- General v. Weeden, Parker 267, Maynard’s Edw. IL, cited Ibid. It is a prerogative of the crown which, I admit, has been very rarely enforced (See Lord Alvanley’s observations in Furtado v. Rodgers, 3 Bos. & Pul. 191) ; but its existence cannot admit of a legal doubt.
“ On a review of authorities, I am entirely satisfied, that, by the rigor of the law of nations and of the common law, the sovereign of a nation may lawfully confiscate the debts of his enemy, during war, or by way of reprisal : and I will add, that I think this opinion fully confirmed by the judgment of the supreme court in Ware v. Hylton, 3 Dall. 199, where the doctrine Was explicitly asserted by some of the judges, reluctantly admitted by others, and denied by none.
“ In respect to the goods of an enemy, found within the dominions of a belligerent power, the right of confiscation is most amply admitted by Gro-tius, and Puffendorf, and Bynkershoek, and Burlamaqui, and Rutherforth and Vattel. See Grotius, and Puffendorf, and Bynkershoek, ubi supra ; and Bynk. Qu. Pub. Jur. c. 4, and 6 ; 2 Burlam. p. 209, § 12, p. 219, § 2, p. 221, § 11; Ruth. lib. 2, c. 9, p. 558-73. Such also is the rule of the common law. Hale, in Harg. Law Tracts, p. 245, c. 18. Vattel has indeed contended (and *in this he is followed by Azuni, part 2, ch. 4, art. 2, r*j44 § 7), that the sovereign declaring war, can neither detain the persons *■ nor the property of those subjects of the enemy who are within his dominions at the time of the declaration, because they came into the country upon the public faith. This exception (which, in terms, is confined to the property of persons who are within the country) seems highly reasonable in itself, and is an extension of the rule in Magna Charta. But, even limited as it is, it does not seem followed in practice ; and Bynkershoek is an authority the other way. Bynk. Quaest. Pub. Jur. c. 2, 3, 7. In England, the provision in Magna Charta seems, in practice, to have been confined to foreign merchants domiciled there ; and not extended to others who came to
*	85
144	SUPREME COURT	[Feb’y
Brown v. United States.
ports of the realm for occasional trade. Indeed, from the language of some authorities, it would seem, that the clause was inserted, not so much to benefit foreign merchants, as to provide a remedy for their own subjects, in cases of hostile injuries in foreign countries. (See the opinion of Ch. J. Lee in Key n. Pearse, cited 2 Doug. 606-7.) However this may be, it is very certain, that Great Britain has uniformly seized, as prize, all vessels and cargoes of her enemies, found afloat in her ports, at the commencement of war. Nay, she has proceeded yet further, and in contemplation of hostilities, laid embargoes on foreign vessels and cargoes, that she might, at all events, secure the prey. It cannot be necessary for me to quote authorities on this point. In the articles respecting the droits of admiralty in 1665, there is a very formal recognition of the rights of the crown to all vessels and cargoes seized before hostilities. The Rebeckah, 1 Rob. 227, and Ibid. 230, note a. This exercise of hostile right—of the summum jus, is so far, indeed, from being obsolete, that it is in constant operation, and in the present hostilities, has been applied to the property of the citizens of the United States. Of a similar character, is the detention of American seamen found in her service at the commencement of the war, as prisoners of war ; a practice which violates the spirit, though not the letter, of Magna Charta ; and certainly, can, in equity and good faith, find few advocates. Of the right of Great Britain thus to seize vessels and cargoes found in her ports, on the breaking out of war, I do not find any denial in authorities which are *entitled to much weight; and I, therefore, consider the rule of the
J law of nations to be, that every such exercise of authority is lawful, and rests in the sound discretion of the sovereign of the nation.
“ The next question is, whether congress (for with them rests the sovereignty of the nation as to the right of making war, and declaring its limits and effects) have authorized the seizure of enemies’ property afloat in our ports? The act of 18th June 1812, ch. 102, is in very general terms, declaring war against Great Britain, and authorizing the president to employ the public forces to carry it into effect. Independent of such express authority, I think, that, as the executive of the nation, he must, as an incident of the office, have a right to employ all the usual and customary means acknowledged in war, to carry it into effect. And there being no limitation in the act, it seems to follow, that the executive may authorize the capture of all enemies’ property, wherever, by the law-of nations, it may be lawfully seized. In cases where no grant is made by congress, all such captures, made under the authority of the executive, must inure to the use of the government. That the executive is not restrained from authorizing captures on land, is clear, from the provisions of the act. He may employ and actually has employed the land forces for that purpose ; and no one has doubted the legality of the conduct. That captures may be made, within our own ports, by commissioned ships, seems a natural result of the language—of the generality of expression in relation to the authority to grant letters of marque and reprisal to private armed vessels, which the act does not confine to captures on the high seas, and is supported by the known usage of Great Britain in similar cases. It would be strange, indeed, if the executive could not authorize or ratify, a capture in our own ports, unless by granting a commission to a public or private ship. I am not bold enough to interpose a limitation, where congress have not chosen to made one ; and I hold, that, by
86
1814]	OF THE UNITED STATES.	145
Brown v. United States.
the act declaring war, the executive may authorize all captures which, by the modern law of nations, are permitted and approved. It will be at once perceived, that in this doctrine I do not mean to include the right to confiscate debts due to enemy subjects. This, though a strictly *national r*14A right, is so justly deemed odious in modern times, and is so generally discountenanced, that nothing but an express act of congress would satisfy my mind, that it ought to be included among the fair objects of warfare ; more especially, as our own government have declared it unjust and impolitic. But if congress should enact such a law, however much I might regret it, I am not aware, that foreign nations, with whom we have no treaty to the contrary, could, on the footing of the rigid law of nations, complain, though they might deem it a violation of the modern policy.
“ On the whole, I am satisfied, that congress have authorized a seizure and condemnation of enemy property, found in our ports, under the circumstances of the present case. And the executive may lawfully authorize proceedings to enforce the confiscation of the same property, before the proper tribunals of the United States. The district-attorney is, for this purpose, the proper agent of the executive and of the United States. From the character and duties of his station, he is bound to guard the rights of the United States, and to secure their interests. Whenever he chooses to institute proceedings on behalf of the United States, it is presumed by courts of law, that he has the sanction of the proper authorities ; and that presumption will avail, until the executive of the legislature disavow the proceedings, and sanction a restoration of the property;
“ I have taken up more time than I originally' intended, in discussing the various subjects submitted in the argument. An apology will be found in their extraordinary importance. If I shall have successfully shown that the principles of prize law, as admitted in England and in the United States, have the sanction of the principles of public law and public jurists, I shall not regret the labor that has been employed, although, in this particular case, I may pronounce an erroneous sentence.
“ I reverse the decree of the district court, and condemn the 550 tons of timber to the United States ; subject, however, to the right of the owners of the Emulous to a reimbursement of their actual charges and expenses for the custody of the property, which I shall reserve for further consideration; and I shall order the said *property to be sold, and the proceeds brought into court to abide the further order of the court.”	*-
Such is the opinion which I had the honor to -pronounce in the circuit court; and upon the most mature reflection, I adhere to it. The argument in this court, urged on behalf of the claimant, has put in controversy the same points which were urged before me. But as the opinion of this court admits many of the principles for which I contended, I shall confine my additional remarks to such as have been overruled by my brethren.
It seems to have been taken for granted, in the argument of counsel, that the opinion held in the circuit court proceeded, in some degree, upon a supposition that a declaration of war operates per se an actual confiscation of enemy’s property found within our territory. To me, this is a perfectly novel doctrine. It was not argued, on either side, in the circuit court, and certainly, never received the slightest countenance from the court. I dis-c aim, therefore, any intention to support a doctrine which I always sup •
87
147	SUPREME COURT	[Feb’y
Brown v. United States.
posed to be wholly untenable. I go yet further, and admit that a declaration of war does not, of itself, import a confiscation of enemies’ property, within or without the country, on the land or on the high seas. The title of the enemy is not by war divested, but remains in proprio vigore, until a hostile seizure and possession has impaired his title. All that I contend for is, that a declaration of war gives a right to confiscate enemies’ property, and enables the power to whom the execution of the laws and the prosecution of the war are confided, to enforce that right. If, indeed, there be a limit imposed as to the extent to which hostilities may be carried by the executive, I admit, that the executive cannot lawfully transcend that limit; but if no such limit exist, the war may be carried on according to the principles of the modern law of nations, and enforced when, and where, and on what property, the executive chooses.
In no act whatsoever, that I recollect, have congress declared the confiscation of enemies’ property. They have authorized the president to grant letters of marque and general reprisal, which he may revoke and anjul *14«! *at h*s pleasure : and even as to captures actually made under such
-* commissions, no absolute title by confiscation vests in the captors, until a sentence of condemnation. If, therefore, British property had come into our ports, since the war, and the president had declined to issue letters of marque and reprisal, there is no act of congress which, in terms, declares it confiscated and subject it to condemnation. If, nevertheless, it be confiscable, the right of confiscation results, not from the express provisions of any statute, but from the very state of war, which subjects the hostile property to the disposal of the government. But until the title should be divested by some overt act of the government, and some judicial sentence, the property would unquestionably remain in the British owners, and if a peace should intervene, it would be completely beyond the reach of subsequent condemnation. There is, then, no distinction recognised by any act of congress, between enemies’ property which was within our ports, at the commencement of war, and enemies’ property elsewhere. Neither are declared
facto confiscated; and each, as I contend, are merely confiscable.
I will now consider what, in point of law, is the operation of the acts of congress made in relation to the present war. The act of 18th June 1812, ch. 102, declares war to exist between Great Britain and the United States, and authorizes the president of the United States to use the land and naval force of the United States to carry the same into effect; and further authorizes him to issue letters of marque, &c., to private armed vessels, against the vessels, goods and effects of the government of Great Britain and the subjects thereof. The prize act of 26th June 1812, ch. 107, confers the power on the president to issue instructions to private armed vessels, for the regulation of their conduct. The act of 6th July 1812, ch. 128, authorizes the president to make regulations, &c., for the support and exchange of prisoners of war. The act of 6th July 1812, ch. 129, respecting trade with .„-I the enemy, authorizes the president *to grant passports for the prop-
-* erty of British subjects within the limits of the United States, during the space of six months, and protects certain British packets, &c., with dispatches, from capture. The act of 3d March 1813, ch. 203, vests in the president the power of retaliation for any violation of the rules and usages of civilized warfare by Great Britain.
88
1814]	OF THE UNITED STATES.	149
Brown v. United States.
These are all the acts which confer powers, or make provisions, touching the management of the war. In no one of them is there the slightest limitation upon the executive powers growing out of a state of war ; and they exist, therefore, in .their full and perfect vigor. By the constitution, the executive is charged with the faithful execution of the laws ; and the language of the act declaring war authorizes him to carry it into effect. In what manner, and to what extent, shall he carry it into effect ? What are the legitimate objects of the warfare which he is to wage ? There is no act of the legislature defining the powers, objects or mode of warfare : by what rule, then, must he be governed ? I think, the only rational answer is, by the law of nations as applied to a state of war. Whatever act is legitimate, whatever act is approved by the law, or hostilities among civilized nations, such he may, in his discretion, adopt and exercise; for with him the sovereignty of the nation rests, as to the execution of the laws. If any of such acts are disapproved by the legislature, it is in their power to narrow and limit the extent to which the rights of war shall be exercised ; but until such limit is assigned, the executive must have all the right of modern warfare vested in him, to be exercised in his sound discretion, or he can have none. Upon what principle, I would ask, can he have an implied authority to adopt one and not another ? The best manner of annoying, injuring and pressing the enemy, must, from the nature of things, vary under different circumstances ; and the executive is responsible to the nation for the faithful discharge of his duty, under all the changes of hostilities.
But it is said, that a declaration of war does not, of itself, import a right to confiscate enemies’ property found within the country at the commencement of war. I cannot admit this position in the extent in which it „ is *laid down. Nothing, in my judgment, is more clear from author- •-ity, than the right to seize hostile property afloat in our ports at the commencement of war. It is the settled practice of nations, and the modern rule of Great Britain herself, applied (as appears from the affidavits in this very cause) to American property in the present war ; applied also to property not merely on board of ships, but to spars floating alongside of them. I forbear, however, to press this point, because my opinion in the court below contains a full discussion of it.
It is also said, that a declaration of war does not carry with it the right to confiscate property found in our country at the commencement of war, because the constitution itself, in giving congress the power “ to declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water,” has clearly evinced, that the power to declare war did not, ex vi terminorum, include a right to capture property everywhere, and that, the power to make rules concerning captures on land and water, may well be considered as a substantive power, as to captures of property within our own territory. In my judgment, if this argument prove anything, it proves too much. If the power to make rules respecting captures, &c., be a substantive power, it is equally applicable to all captures, wherever made, on land or on water. The terms of the grant import no limitation as to place ; and I am not aware, how we can place around them a narrower limit than the terms import. Upon the same construction, the power to grant letters of marque and reprisal is a substantive power ; and a declaration of war could not, of itself, authorize any seizure whatsoever of hostile
89
150	SUPREME COURT	[Feb’y
Brown v. United States.
property, unless this power was called into exercise. I cannot, therefore, yield assent to this argument. The power to declare war, in my opinion, includes all the powers incident to war, and necessary to carry it into effect. If the constitution-had been silent as to letters of marque and captures, it would not have narrowed the authority of congress. The authority to grant letters of marque and reprisal, and to regulate captures, are ordinary and necessary incidents to the power of declaring war. • It would be utterly ineffectual without them. The expression, therefore, of that which is
--.i implied in the very nature of the grant, cannot weaken the *force of
J the grant itself. The words are merely explanatory, and introduced ex abundanti cautela. It might as well contended, that the power “ to provide and maintain a navy,” did not include the power to regulate and govern it, because there is in the constitution an express provision to this effect. And yet I suppose, that no person would doubt, that congress, independent of such express provision, would have the power to regulate and govern the navy ; and if they should authorize the executive “ to provide and maintain a navy,” it seems to me as clear, that he must have the incidental power to make rules for its government. In truth, it is by no means unfrequent in the constitution, to add clauses of a special nature to general powers which embrace them, and to provide affirmatively for certain powers, without meaning thereby to negative the existence of powers of a more general nature. The power to provide “ for the common defence and general wellfare,” could hardly be doubted to include the power “ to borrow money ; ” the power “ to coin money,” to include the power “ to regulate the value thereof ; ” and the power “ to raise and support armies,” to include the power “ to make rules for the government and regulation ” thereof. On the other hand, the affirmative power “ to define and punish piracies and felonies committed on the high seas,” has never been supposed to negative the right to punish other offences on the high seas ; and congress have actually legislated to a more enlarged extent. I cannot, therefore, persuade myself that the argument against the doctrine for which I contend, is at all affected by any provision in the constitution.
The opinion of my brethren seems to admit, that the effect of hostilities is to confer all the rights which war confers ; and it seems tacitly to concede, that, by virtue of the declaration of war, the executive would have a right to seize enemies’ property which should actually come within our territory during the war. Certainly, no such power is given directly by any statute. And if the argument be correct, that the power to make captures on land or water must be expressly called into exercise by congress, before the executive can, even after war, enforce a capture and condemnation, it will be very *	, difficult to support the concession. Suppose, a *British ship of war
-I or merchant ship should now come within our ports, there is no statute declaring such ship actually confiscated. There is no express authority either for the navy or army to make a capture of her ; and although the executive might authorize a private armed ship so to do, yet it would depend altogether on the will of the owners of the ship, whether they would do so or not. Can it be possible, that the executive has not the power to authorize such seizure? And if he may authorize a seizure by the army or navy, why not by private individuals, if they will, »volunteer for the purpose.
The act declaring war has authorized the executive to employ the land 90
1814]	OF THE UNITED STATES.	125
Brown v. United States.
and naval force of the United States, to carry it into effect. When arid where shall he carry it into effect ? Congress have net declared, that any captures shall be made on land ; and if this be a substantive power, not included in a declaration of war, how can the executive make captures on land, when congress have not expressed their will to this effect ? The power to employ the army and navy might well be exercised in preventing invasion, and in the common defence, without necessarily including a right to capture, if the right to capture be not an incident of war : and upon what ground, then, can the executive plan and execute foreign expeditions or foreign captures ? Upon what ground he can authorize a Canadian campaign, or seize a hostile fort or territory, and occupy it by right of capture and conquest, I am utterly at a loss to perceive, unless it be, that the power to carry the war into effect, gives every incidental power which the law of nations authorizes and approves in a state of war. I am at a loss to perceive how the power exists, to seize and capture enemy’s property, which was without our territory, at the commencement of the war, and not the power to seize that which was within our territory, at the same period. Neither are expressly given nor denied (except as to private armed ships), and how can either be assumed, except as an incident of war, acknowledged upon national and public principles ? It may be suggested, that the executive, “ as commander-in-chief of the army and navy,” has the power to make foreign conquests. But this is utterly inadmissible, if the right to authorize captures resides as a substantive power in congress, *and does not follow as an incident of a declaration of war : and certainly, the rights of the *-“ commander-in-chief ” must be restrained to such acts as are allowed by the laws. Besides, the same difficulty meets us here as in the former case ; if his powers, as commander-in-chief, authorize him to make captures, without the territory, why not, within the territory ?
The acts respecting alien enemies and prisoners of war, have been supposed, even in a state of actual war, to confer new powers on the executive. I cannot accede to the inference, in the extent to which it is claimed. In general, these acts may be deemed mere regulations of war, limiting and directing the discretion of the executive ; and it cannot be doubted, that congress had a perfect right to prescribe such regulations. To regulate the exercise of the rights of war as to enemies, does not, however, imply that such rights have not an independent existence. Besides, it is clear, that the act respecting alien enemies applies only to aliens resident within the country ; and not to the property of aliens, who are not so resident. I might answer, in the same manner, the argument drawn from the act of 6th July 1812, ch. 129, § 4, and the act of 3d of March 1813, ch. 203. But even admitting that these acts did confer some new powers, still, as these powers do not respect the present case, I cannot consider them as affording even a legislative implication against the existence of the powers for which I contend.
It has been supposed, that my opinion assumes for its basis, the position, that modern usage constitutes a rule which acts directly on the thing itself, by its own force, and not through the sovereign power. Certainly, I do not admit this supposition to be correct. My argument proceeds upon the ground, that when the legislative authority, to whom the right to declare war is confided, has declared war in its most unlimited manner, the executive authority, to whom the execution of the war is confided, is bound to carry it
91
153	SUPREME COURT	[Feb’y
The Rapid.
into effect. He has a discretion vested in him, as to the manner and extent; but he cannot lawfully transcend the rules of warfare established among civilized nations. He cannot lawfully exercise powers, or authorize proceedings, which the civilized world repudiates and disclaims. The sovereignty, *	, *as to declaring war and limiting its effects, rests with the legislature.
J The sovereignty, as to its execution, rests with the president. If the legislature do not limit the nature of the war, all the regulations and rights of general war attach upon it. I do not, therefore, contend, that modern usage of nations constitutes a rule acting on enemies’ property, so as to produce confiscation of itself, and not through the sovereign power : on the contrary, I consider enemies’ property, in no case whatsoever, confiscated by the mere declaration of war ; it is only liable to be confiscated, at the discretion of the sovereign power having the conduct and execution of the war. The modern usage of nations is resorted to, merely as a limitation of this discretion, not as conferring the authority to exercise it. The sovereignty to execute it, is supposed already to exist in the president, by the very terms of the constitution : and I would again ask, if this general power to confiscate enemies’ property does not exist in the executive, to be exercised in his discretion, how is it possible, that he can have authority to seize and confiscate any enemies’ property coming into the country since the war, or found in the enemies’ territory? Yet, I understood the opinion of my brethren to proceed upon the tacit acknowledgment, that the executive may seize and confiscate such property, under the circumstances which I have stated.
On the whole, I Am still of opinion, that the judgment of the circuit court was correct, and ought to be affirmed. It is due, however, to myself, to state, that, at the trial in the circuit court, it was agreed, that the timber had always been afloat on tide-waters; and the affidavit by which it is proved to have rested on land at low tide, was not taken, until after the hearing and decision of the cause. In the opinion which I have expressed, I am authorized to state, that I have the concurrence of one of my brethren.
Sentence reversed.
*155]	*The Rapid, Terry, Master.
War.—Trading with an enemy.
After a declaration of war, an American citizen cannot lawfully send a vessel to the enemy s , country, to bring away his property.1
The Rapid, 1 Gallis. 295, affirmed.
This was an appeal from the sentence of the Circuit Court for the district of Massachusetts. , The material facts in the case were these :
Jabez Harrison, a native American citizen, the claimant and appellant in this case, had purchased a quantity of English goods, in England, before the declaration of war by the United States against that country, and deposited them on a small island belonging to the English, called Indian island, and situated near the line between Nova Scotia and the United
1 See Scholefield v. Eichelberger, 7 Pet. 586 ; Jecker v. Montgomery, 18 How. 110; The Wil-
92
liam Bagaley, 5 Wall. 377,405 ; Hanger v. Abbott, 6 Id. 535 ; Coppell v. Hall, 7 Id. 557.
1814]	OF THE UNITED STATES.	155
The Rapid.
States. Upon the breaking ont of the war, Harrison’s agents in Boston hired the Rapid, a vessel licensed and enrolled for the cod-fishery, to proceed to the place of deposit, and bring away the goods. The Rapid accordingly sailed from Boston, on the 3d of July 1812, with Harrison, the claimant, on board, proceeded to Eastport, where Harrison was left, and from thence, agreeably to Harrison’s orders, to Indian island, where the cargo in question was taken on board. On the 8th of July, while on her return, she was captured by the Jefferson privateer, on the high seas, and brought into Salem. The goods, being libelled as prize, and claimed by Harrison as his property, were condemned in the circuit court of Massachusetts, to the captors, on the ground, that by “ trading with the enemy,” they had acquired, the character of enemies’ property.
A claim was also interposed by the United States, on the ground of a violation, by the Rapid, of the non-intercourse act ; this claim was also rejected. From the decree of the circuit court, the United States and Harrison appealed.
Harper, for Harrison.—The ground of condemnation, in the circuit court, of the goods in question, was, that trading with the enemy made them enemies’ property. But we contend, that in this case, there was no trading with the enemy. *Trading is a commercial contract or a series of contracts of sale ; contract is of the essence of trading. But ■-no commercial transaction of this kind took place between Harrison and the enemy. The contract, in the present case, was made, the goods were purchased and paid for before, the declaration of war ; consequently, when the British were friends. Here was merely a case of removal by Harrison of his own property from the enemies’ country to this, it was the simple exercise of an act of ownership, an act which surely does not invest the property with a hostile character.
Every citizen has a right, on the breaking out of a war, to withdraw his property, purchased before the war, from the enemy’s country and remove it to his own ; and it is certainly the interest of the community to permit such removal. The cargo, therefore, being American property, neither the declaration of war, nor the commission of the privateer, authorized the capture.
But this case does not rest on general principles alone. In the case of Hallet v. Jenks, 3 Cranch 210, the actual purchase of a cargo in a French port, was decided by this court to be no violation of the non-intercourse act of 13th June 1798, a case much stronger than the present. Congress also has given a very different construction to transactions of this kind by the act of 27th February 1813 (2 U. S.‘ Stat. 804), remitting the forfeitures which had accrued under the non-intercourse act of March 1st, 1809. (Ibid. 506.)
The claim of the United States will not, at this time, be interposed, (a)
Pitman, contra, contended, 1. That it appearing, on the face of Harrison’s claim, that the property in question was put on board the Rapid, in violation of the laws of the United States, he can *have no standing in court for the purpose of claiming the same. In support of this point, he L '
(«) This claim was subsequently, during the same term, revived, and an argument had thereupon. The decision of the court will be found in the opinion delivered March 15th, in the case of The Sally, post, p. 382.
93
157	SUPREME COURT	[Feb’y
The Rapid.
cited the following cases. The Walsingham Packet, 2 Rob. 72, 77 ; The Cornelis and Maria, 5 Ibid. 28, 32 ; The Recovery, 6 Ibid. 348.
2. That all intercourse with the enemy being illegal, the vessel and cargo in question are subjected to confiscation as prize. The following cases were cited as going to establish this point. Deponceau’s Bynkershoek, p. 24 ; The Abby, 5 Rob. 224, 253-4 ; The Jonge Klassina, Ibid. 265, 270 ; The Odin, 1 Ibid. 208, 248 ; Case of The Fortuna, cited in the case of The Hoop, Ibid. 178, 212 ; The Comet, Edw. Adm. 32 ; The Santa Cruz, 1 Rob. 42; The Hoop, Ibid. 196 ; The Ringende Jacob, Ibid. 74, 89 ; Case of The Louisa Margaretha, cited in Bell v. Gilson, 1 Bos. & Pul. 349 ; Case of St. Philip, cited in Potts v. Bell, 8 T. R. 556 ; Lord Kenyon’s opinion, Ibid. 561 ; The Angelique, 3 Rob. app’x, B, p. 7, 294 ; The Venus, 4 Ibid. 289, 355 ; The Nayade, Ibid. 206, 251 ; The Vrow Judith, 1 Ibid. 126, 150 ; The Betsey, Ibid. 78, 93 ; The Neptunus, Ibid. 144, 170 ; Case of The Nelly, cited in note to the case of The Hoop, Ibid. 184, 219; The Madonna delle Gracie, 4 Ibid. 161, 195 ; The Juffrow Catharina, 5 Ibid. 141.
Pinkney, on the same side.—By the constitution of the United States, congress has power to declare war. War, in the present case, had been declared. After knowledge of the declaration of war, the claimant fitted out a vessel to go to the enemies’ country, to bring away his property ; the voyage was accordingly prosecuted, and the property brought away. By this intercourse with the enemy, the vessel and cargo are to be considered as having adhered to the enemy, and as being, pro hdc vice, hostile.
With regard to the general principle, that trade with an enemy is illegal, there can be no doubt : the principle is recognised by the common law and by the maritime codes of all the European nations. By these laws, all intercourse with an enemy, not sanctioned by the sovereign power, is prohibited. This principle is founded on the strongest reasons. Without this salutary *provision, what a wide door would be opened for every species of treasonable intercourse ? The English authorities are almost omnipotent on this subject. See Potts v. Bell, 8 T. R. 554, Sir J. Nicholl’s argument, and the cases there cited. Many of these authorities are judicial decisions in cases which occurred before the revolution. The principle contended for was, therefore, brought over, before that time, by the English emigrants to this country, and is, consequently, to be considered of equal force here as in England. The doctrine, then, may be considered as established.
The voyage, in this case, was undertaken by Harrison, with full knowledge of the war; against his double duty ; in violation both of the nonimportation act and of the rights of war.
But the appellants have attempted to take a distinction between a purchase made before the declaration of war, and a purchase made since ; and they contend, that, as the purchase, in the present case, was made previous to the declaration of war, the property is not liable to confiscation, no trading having been carried on with the enemy. But all the cases on this subject condemn such a distinction. Any commercial intercourse with the enemy, is trading, within the meaning of the term, as used in prize law ; and that, for the very obvious reason before assigned, viz., that if commercial intercourse of any kind were permitted, it would facilitate the means of casrying on a traitorous correspondence. The case of
94
1814]	OF THE UNITED STATES.	158
The Rapid.
Hallet n. Jenks, 3 Cranch 210, cited by the appellants, was a case of clear compulsion. The transaction, in the present case, was perfectly voluntary.
Harper, in reply.—No case has been cited by the claimant’s counsel, in which there was not a trading with the enemy. Here, we contend, there was none. In the case of Hscott, cited in the case of The Hoop, 1 Rob. 182, the goods were the product of a trade long carried on, and shipped under fictitious names. Here, they were shipped openly. No circumstances of suspicion attended the transaction. *In some of the cases cited, part of the goods were purchased after the declaration of war. All the *-cases cited are either new acts of trade, or a continuation of trade in the regular course of employment of the parties, and are also attended with circumstances of suspicion.
The mere act of going into the enemies’ country, is not illegal. Any man may go thither, at any time, if the enemy will permit him ; he violates no law of his own country, by so doing. Those laws prohibit commercial intercourse only ; and that, not because it gives an opportunity of affording information to the enemy and opens a door for the commission of traitorous practices, but because such prohibition is rendered necessary by the modern mode of warfare, which is intended to affect the enemy through his commerce. The principle and object of the rule, threfore, are not applicable to this case. The rule is confined to commercial transactions and commercial objects. If facility of treasonable intercourse were the reason on which the prohibition is founded, it would operate to prevent our citizens from going to the frontiers, or even towards them, an operation which was surely never intended to be given it. The question to be considered in every case of this nature is this—has the privilege of going to the enemies’ country been applied to improper purposes ?
Monday, March 7th, 1814. (Absent, Todd,'J.) Johnson, J., delivered the opinion of the court, as follows :—This capture was made on the high seas, about a month after the declaration of war. The claimant, Harrison, had purchased a quantity of English goods, in England, “ a long time,” to use his own language, before the declaration of war, and deposited them on a small island, called Indian island, near to the line between Nova Scotia and these states. Uupon the breaking out of the war, his agents in Boston hired the Rapid, a licensed vessel in the cod-fishery, to proceed to the place of deposit and bring away these goods. On her return, she was captured by the Jefferson privateer, and was condemned for trading with the enemy’s country.
*On the argument, it was contended, in behalf of the appellant, that this was not a trading, within the meaning of the cases cited, to support the condemnation ; that, on the breaking out of a war, every citizen had a right, and it was the interest of the community to permit her citizens, to withdraw property lying in an enemy’s country and purchased before the war ; finally, that neither the declaration of war, nor the commission of the privateer authorized the capture of this vessel and cargo, as they were, in fact, American property.
It is understood, that the claim of the United States for the forfeiture, is not now interposed. The court, therefore, enters upon this consideration
95
160	. SUPREME COURT	[Feb’y
The Rapid.
unembarrassed by a claim which would otherwise ride over every question now before us.
This is the first case, since its organization, in which this court has been called upon to assert the rights of war against the property of a citizen. It ' is, with extreme hesitation, and under a deep sense of the delicacy of the duty which we are called upon to discharge, that we proceed to adjudge the forfeiture of private right, upon principles of public law, highly penal in their nature, and unfortunately, too little understood.
But a new state of things has occurred—a new character has been assumed by this nation, which involves it in new relations,.and confers on it new rights ; which imposes a new class of obligations on our citizens, and subjects them to new penalties. The nature and consequences of a state of war must direct us to the conclusions which we are to form on this case.
On this point, there is really no difference of opinion among jurists : there can be none among those who will distinguish between what it is, in itself, and what it ought to be, under the influence of a benign morality and the modern practice of civilized nations. In the state of war, nation is known to nation only by their armed exterior; each threatening the other with con-Quest or annihilation. The individuals who compose *the belligerent
■* states, exist, as to each other, in a state of utter occlusion. If they meet, it is only in combat. War strips man of his social nature ; it demands of him the suppression of those sympathies which claim man for a brother; and accustoms the ear of humanity to hear with indifference, perhaps exultation, “ that thousands have been slain.” These are not the gloomy reveries of the bookman. From the earliest time of which historians have written or poets imagined, the victor conquered but to slay, and slew but to triumph over the body of the vanquished. Even when philosophy had done all that philosophy could do, to soften the nature of man, war continued the gladiatorian combat: the vanquished bled, wherever caprice pronounced her^ai. To the benign influence of the Christian religion it remained’ to shed a few faint rays upon the gloom of war ; a feeble light but barely sufficient to disclose its horrors. Hence, many rules have been introduced into modern warfare, at which humanity must rejoice, but which owe their existence altogether to mutual concession, and constitute so many voluntary relinquishments of the rights of war. To understand what it is in itself, and what it is under the influence of modern practice, we have but too many opportunities of comparing the habits of savage, with those of civilized warfare.
On the subject which particularly affects this case, there has been no general relaxation. The universal sense of nations has acknowledged the demoralizing effects that would result from the admission of individual intercourse. The whole nation are embarked in one common bottom, and must be reconciled to submit to one common fate. Every individual of the one nation must acknowledge every individual of the other nation as his own enemy—because the enemy of his country. It is not necessary to quote the authorities on this subject; they are numerous, explicit, respectable, and have been ably commented upon in the argument.
But after deciding what is the duty of the citizen, the question occurs, *1w^ia^ i® consequence of a breach of that duty ? *The law of prize
J is part of the law, of nations. In it, a hostile character is attached to trade, independently of the character of the trader who pursues or directs 96
1814]	OF THE UNITED STATES.	162
The Rapid.
it. Condemnation to the use of the captor is equally the fate of the property of the belligerent, and of the property found engaged in anti-neutral trade. But a citizen or ally may be engaged in a hostile trade, and thereby involve his property in the fate of those in whose cause he embarks.
This liability of the property of a citizen to condemnation as prize of war,maybe likewise accounted for under other considerations. Everything that issues from a hostile country is, primd facie., the property of the enemy ; and it is incumbent upon the claimant to support the negative of the proposition. But if the claimant be a citizen or an ally, at the same time that he makes out his interest, he confesses the commission of an offence which, under a well-known rule of the civil law, deprives him of his right to prosecute his claim.
This doctrine, however, does not rest upon abstract reason. It is supported by the practice of the most enlightened (perhaps we may say of all) commercial nations. And it affords us full confidence in our decision,, that we find, upon recurring to the records of the. court of appeals in prize cases, established during the revolutionary war, that in various cases, it was reasoned upon as the acknowledged law of that court. Certain it is, that it was the law of England, before the revolution, and therefore, constitutes a part of the admiralty and maritime jurisdiction conferred on this court ia pursuance of the constitution.
After taking this general view of the principal doctrine on this subject,, we will consider the points made in behalf of the claimant in this case,, and—
1.	Whether this was a trading, in the eye of the prize law, such as will; subject the property to capture ? The force of the argument on this point,, depends upon the terms made use of. If, by trading, in prize law, was meant that signification of the term which consists in negotiation or contract, this case would certainly not come under the penalties of the rule. But the object, policy and spirit of the rule is to cut off all communication, or actual *locomotive intercourse between individuals of the belligerent rsj! states. Negotiation of contract has, therefore, no necessary connection >-with the offence. Intercourse, inconsistent with actual hostility, is the offence against which the operation of the rule is directed : and by substituting this definition for that of trading with an enemy, an answer is given: to this argument.
2.	Whether, on the breaking out of a war, the citizen has a right to remove to his own country with his property, is a question which we conceive does not arise in this case. This claimant certainly had not a right to leave the United States, for the purpose of bringing home his property from an enemy country ; much less could he claim it as a right, to bring into this country goods, the importation of which was expressly prohibited. As to the claim for the vessel, it is founded on no pretext whatever; for the undertaking, besides being in violation of two laws of the United States, wa0 altogether voluntary and inexcusable. With regard to the importations 10m Great Britain about this time, it is well known, that the forfeiture was re eased on grounds of policy and a supposed obligation induced by the assurances which had been held out by the American charge d’affaires in ngland. But this claimant could allege no such excuse.
3.	On the third point, we are of opinion, that the foregoing observations 8 Crunch—7	97
163	SUPREME COURT	[Feb’y
The Rapid.
furnish a sufficient answer. If the right to capture property thus offending, grows out of the state of war, it is enough to support the condemnation in this case, that the act of congress should produce a state of war, and that the commission of the privateer thould authorize the capture of any property that shall assume the belligerent character. Such a character we are of opinion this vessel and cargo took upon herself ; or, at least, she is deprived of the right to prove herself otherwise.
We are aware, that there may exist considerable hardship in this case ; the owners, both of vessel and cargo, may have been unconscious that they were violating the duties which a state of war imposed upon them. It does *1 cal no^ aPPear> that they meant a daring violation either *of the laws or
J belligerent rights of their country. But it is the unenvied province of this court, to be directed by the head, and not the heart. In deciding upon principles that must define the rights and duties of the citizen and direct the future decisions of justice, no latitude is left for the exercise of feeling.
Friday, March 11th, 1814. The claim of the United States was taken up.
Hush, Attorney-General.—The United States claim the property in question, as a forfeiture under the non-intercourse act of 1st March 1809. This act was in force at the breaking out of the war, and still continued in force, at the time of the capture of the Rapid. The 6th section of the act declares the prohibited goods liable to forfeiture, immediately on being shipped, with intention of importing the same into the United States. The United :States do not claim in any case, but where the vessel was unquestionably bound and sailing to the United States, and when no force was necessary to bring her in. When such a vessel actually arrives in a port of the United States, the intent is not only evidenced, but carried into effect, and the offence is complete.
The arrival, in this case, must be taken as a voluntary coming into port. For as the Rapid was bound to the United States, previous to the capture, the intervention of the privateer was immaterial, and cannot be considered as rendering the arrival involuntary. The commencement of the illegal act was at the time of the shipment, and was prior to any forfeiture under belligerent rights. The forfeiture under the non-intercourse act, therefore, relates back to the inception of the offence. The municipal law, we contend, abrogated thejizs belli, pro tanto.
It is true, that, by the 14th section of the prize act of 26th June 1812 (2 U. S. Stat. 763) provision is made for the importation of British goods captured from the enemy, and made good and lawful prize of war ; and it is admitted, that such goods are forfeited and accrue to the captors; but the *16 <51 Question recurs, what is *good and lawful prize of war ? Not, we
J contend, American property, in an American bottom, coming to the United States, as in the present case. By the 16th section of the same act, the act of 4th of April 1812, laying an embargo, and the non-exportation act of the 14th of the same month, are repealed, so far as they relate to ships and vessels having commissions or letters of marque and reprisal. It was equally necessary, that there should be an express repeal of the non-intercourse act. By the act of 2d January 1813 (2 U. S. Stat. 789), directing the secretary of the treasury to remit fines, forfeitures and penalties in cei-
98
1814]	OF THE UNITED STATES. .	165
The Rapid.
tain cases, property shipped and departing from Great Britain between the 23d of June and 1 Sth of September, and forfeited, under the non-intercourse acts, to the United States, is to be restored to the owners : no notice is taken of any claim of the captors. The plain inference is, that the legislature did not suppose that any claim existed on the part of the captors. The same inference may be drawn from the act of 27th February 1813. (Ibid. 804.)
The sovereign is not to be deprived of his rights by implication. Where the rights of the sovereign clash with those of a private individual, the rights of the latter must yield to those of the former. Fisher v. Blight, 2 Cr. 358 ; Hales v. Petit, Plowd. 253. This last is a leading case on this point.
From the act of 13th July 1813 (3 U. S. Stat. 4), it is clearly to be inferred, that, previous to the passage of that act, the rights of the captors were considered as being merged in the forfeiture under the non-intercourse acts. The act of July has merely suspended the right of the United States.
Pitman, contra, for the captors.—We do not claim adversely to the United States, but under the United States, as grantees. We were authorized by our commission to capture this vessel, and upon capture, it was forfeited to us : condemnation, we *contend, is not necessary to give us pjgg title: our title accrued at the moment of capture. The United States *■ relinquished to us their right, by § 4 of the prize act. The non-intercourse act had reference solely to time of peace.
The property in question could not be forfeited to the United States, merely by being put on board; for a municipal law can only have a municipal operation ; it cannot operate extra-territorially ; it can have no effect upon goods in a foreign country, whether that country be hostile or neutral. Again, by the act of 1st March 1809, § 8, no persons are authorized to seize property for a violation of that act, except the officers particularly mentioned therein. Until, therefore, a seizure was made by some person so authorized, no forfeiture to the United States could attach : and if, as in the present case, a seizure had been made jure belli, no seizure under the municipal act could subsequently be made, until the first was determined. The Mercurios, 1 Rob. 68, 81.
The non-intercourse act was merged in the declaration of war, as it respected British subjects and American citizens : this property was, therefore, forfeited to the United States jure belli: they had a right to seize it jure belli: this right they have granted to us, and our title to the property we have captured must be tried jure belli. If this were a municipal seizure, and if the property were British, the British owner would have had a right to come into court and assert his claim ; but this he could not now do, being an alien enemy.
The 2d section of the act of the 13th July 1813, we consider, notwithstanding what has been said by the counsel for the United States, as acknowledging a previous right in the captors.
Jones, on the same side considered, 1st. The law independent of the instructions of the president to privateers. *2d. The instructions themselves.	[ 167
1st. The United States did not mean to relinquish the broad ground of
99
167	1 SUPREME COURT	[Feb’y
The Rapid.
jus belli, as to British property coming to the United States. The declaration of war and the prize act, being subsequent to the non-intercourse law, are to be considered as having abrogated or superseded that law.
But if this should not be admitted, we contend, that these acts may exist together, without any inconsistency. There is room enough both for the non-intercourse and the prize act. It has been decided by this court, that trading with the enemy is, per se, a ground of confiscation ; there, then, the prize act may operate. But many hostile cargoes may escape capture, and reach the United States ; many such cargoes may be imported by neutrals ; here is room for the operation of the non-intercourse act. The act of 13th July 1813, relinquishing to the captors the claims of the United States to the captured property, is conclusive to show that the United States did not mean to relinquish the rights of war. That act describes the property to which the United States give up their claim, as property captured on the high seas, without limitation.
2d. As to the president’s instructions. These instructions do not apply to vessels sailing after knowledge of the declaration of war. But we contend, that the president, not having the power of war and peace, had no authority to give such instructions : he could only control the privateers, by the power he had of revoking their commissions. There is a difference between his power over these vessels and his power over the public armed ships of the United States. The prizes taken by privateers under the prize act, are forfeitures, and are to be appropriated differently from those captured under the non-intercourse act. To show that the capture, and not the e -. condemnation, *is the foundation of the captor’s right of property,
-> the court is referred to Morrough n. Cornyns, 1 Wils. 211.
Irving, control.—By the 3d section of the prize act, privateers are bound to observe all the laws of the Uhited States. Supposing, thererefore, the non-intercourse act to have been in force, they had no right to seize for a violation of that act. Besides, the mode of prosecution under the non-intercourse act is essentially different from that directed to be pursued under the prize act. There is also a difference in the manner of distributing the captured property.
Pinkney.—The rights of the captors depend not upon the non-intercourse act. Both that and the prize act may be in force, at the same time, and operate on the same thing. The first seizure decides which mode of condemnation, &c., shall be adopted.
Harper, in reply.—There is a distinction between importations made by citizens of the United States, and those made by foreigners. The latter cannot be affected by the non-intercourse act, until the goods have arrived within the United States. They commit no offence, until the goods are actually imported. But with regard to citizens of the United States, the case is different. They are guilty of a violation of the act, by the mere shipment of prohibited goods in a foreign country, with intent to import the same into the United States. The law, as to them, has an extra-territorial operation ; it binds them wherever they are. By the shipment, therefore, at Indian island, with intent to import into the United States, the property in the
100
1814]
OF THE UNITED STATES.
The Alexander.
168
present case, was immediately forfeited ; and the right of the United States to the forfeiture, at that moment became complete.
For the opinion of The Court on the foregoing question, respecting the claim of the United States, under the non-intercourse act, see the opinion in the case of The Sally, delivered by. Story, J., 15th March 1814 (post, p. 382), in which the court decided in favor of the captors.
*The Alexander, Picket, Master.	[*169
Prize of war.
A vessel owned by citizens of the United States, sailed from Naples, in the year 1812, for the United States, with a cargo, and a British license to carry the same to England; on her passage, hearing that war had broken out between Great Britain and the United States, she altered her course for England; was captured by the British, carried into Ireland, libelled, and acquitted upon her license ; sold.her cargo, and after a detention of seven months in Ireland, purchased a return-cargo in Liverpool, sailed for the United States, and was captured by a United States’ privateer: vessel and cargo condemned as prize to the captors.1
Capture good, though only a prize-master put on board.
The Alexander, 1 Gallis. 532, affirmed.
This was an appeal from the sentence of the Circuit Court for the district of Massachusetts. The following were the material facts in the case :
The brig Alexander, William S. Picket, master, sailed from Naples, on the 22d June 1812, with a cargo of brandy, wine and cream of tartar, with a British license to carry the same from Naples to England. She touched at Gibraltar, and there left her deck-load, consisting of brandy, and sailed from thence for the United States. On the 3d of August 1812, she received intelligence of the war between the United States and Great Britain, and changed her course for England. She was afterwards captured by the British, and sent into Cork, Ireland, and acquitted, and there disposed of her cargo. After seven months’ detention in Cork, she proceeded to Liverpool, in ballast. At Liverpool, she took in the cargo in question, purchased by Samuel Welles, one of the claimants, then in England, from the proceeds of the cargo brought from Naples, and sailed from Liverpool for Boston, May 9th, 1813. On the 2d of June following, she was captured by the privateer America, John Kehew, commander, and libelled as prize, in the district of Massachusetts.
When the Alexander sailed from Naples, she and her cargo were owned, one-half by the claimants, and the other half by W. & S. Robinson, of New York. The master, on his examination upon the standing interrogatories, stated, that the vessel belonged to J. & S. Welles and W. & S. Robinson. He also stated, that on his arrival in the United States, he delivered to the chief clerk of J. & S. Welles, of Boston, bills of lading, invoices and letters relating to the vessel and goods. These papers were never produced by the claimants.
John Welles, of Boston, claimed the vessel and cargo *for himself p K and Samuel Welles, alleging that Samual Welles, in London, purchased, *- ‘ on their joint account, of the agent of W. & S. Robinson, their half of the
1 See The Joseph, post, p. 451.
101
170
SUPREME COURT
The Alexander.
[Feb’y
brig, and the proceeds of the Naples cargo, before the purchase of the cargo in question. The United States also interposed a claim to the vessel and cargo, as forfeited under the non-importation act.
In the district court, the claim of J. & S. Welles was rejected, and the property condemned to the United States. From this decree, the captors and claimants appealed. In the circuit court, the property was condemned to the captors. From this decree, the United States and the claimants appealed.
Hush, Attorney-General, stated, that it was not the intention of government to interpose.
Dexter, for claimants.—There being no general rule of the law of nations, that every trading with the enemy is unlawful, and there being no municipal law on the subject, an American citizen, surprised abroad by an unexpected war, has a right to use all necessary means to save his property, and to secure his return home, provided the means used for that purpose be not inconsistent with the interest of the nation to which he belongs. All the means employed in the present case were necessary to save the property in question: and were so far from being inconsistent with the interest of the United States, that they clearly tended to the national benefit.
That there is no general rule of the law of nations, prohibiting all trade with the enemy, is a proposition which probably will not be controverted. Even Sir William Scott does not deny the right to withdraw funds, upon the breaking out of a war ; he allows that cases of this kind are entitled to be treated with indulgence : he only holds, that if a particular mode of withdrawing funds has been prescribed by the municipal law, as by license, for instance, the person who pursues a different mode is punishable. He has, however, expressly decided, *that where circumstances rendered J it impossible for the party to obtain a license, there the property shall not be condemned, if it be a case where a license ought to have been granted, if applied for. The Harmony, 2 Rob. 264, 322 ; The Citto, 3 Ibid. 37, 38 ; The Ocean, 5 Ibid. 90 ; The Dree Gelyroeders, 4 Ibid. 193, 234. No man is bound, on the breaking out of a war, to abandon his property to the enemy; and if no tribunal is established to decide in what cases property shall or shall not be withdrawn, every man must judge for himself.
In the case of Hallet v. Jenks, 3 Crunch 210, there was an entire prohibition of trade ; a prohibition more complete than any one which results from any provision of the law of nations ; yet this court decided, in that case, that the party being forced into the prohibited port, and obliged by the public authorities of the place to sell, he might purchase a return-cargo. In the present case, the captain of the Alexander, hearing of the war, and believing it impossible to reach the United States without capture, conceived himself to be under the necessity of changing his course for England, or losing his vessel and cargo; and having a license, he determined to deceive the enemy. Being captured by a British cruizer, and carried into Ireland, he was libelled, but acquitted upon his license. He was' compelled to sell his cargo. What was he to do with the proceeds ? Suppose, he had sold for bank bills—must he bring them to this country ? He could not bring specie ; it is prohibited. The only way in which he could withdraw his property, was to purchase a return-cargo, and obtain another license.
102
1814]
OF THE UNITED STATES.
The Alexander.
in
This course he pursued : and we conceive that he was perfectly justified in so doing. The motives for withdrawing his property, after acquittal, were strong, one, among others which might be mentioned, was the danger that the deception he had practised upon the enemy would be detected.
2.	But allowing, for the sake of argument, that sailing to England, after a knowledge of the war, would have been an illegal act, it is clear, in this case, that there was no sailing to England ; there was only an intention *to go thither; and it is a well-known rule of law, that the bare intention to commit an illegal act is not punishable. Again, it can- *-not be contended, that the sailing to Ireland was illegal, as the vessel was forcibly carried in there by the enemy.
3.	This is a case, which comes within the additional instruction of the president of the United States to our public and private armed vessels, issued August 28th, 1812. That instruction prohibits the interruption, by our public and private armed vessels, of “ any vessels belonging to citizens of the United States, coming from British ports to the United States, laden with British merchandise, in consequence of the alleged repeal of the British orders in council.” Kehew, the commander of the privateer, had received this instruction. As to the power of the president to issue such instructions,^ there can be no doubt. Even if there were no act of congress relating to the subject, the general power of the executive to direct all hostile operations, gives him the particular power in question. But congress has sanctioned the instruction in question, by the proviso contained in the 1st section of the act of 13th July 1813. (3 U. S. Stat. 5.)
But it will be said, perhaps, that this instruction is applicable only to vessels sailing from a British port, after the repeal of the orders in council, and before the knowledge of the war. Such a construction is erroneous. By the act of congress last mentioned, it is provided, that nothing in the said act contained shall extend to any capture made by private armed vessels, in violation of the additional instructions of the president of 28th August 1812, after the captor “ shall have been ” apprised thereof. From the use of the phrase, “ shall have been,” it is clear, that the instructions were in force as late as the date of the act of 13th July, i. e., nearly a year after the instructions in question were first given by the president. Government also continued to issue these instructions to the privateers, up to the time of the trial of this cause in the district court, and afterwards. Now, to what vessels coming from a British port, and laden with British merchandise, could *those instructions apply, which were issued more than a year after r4. the declaration of war ? Surely not to vessels which sailed while the *-	$
orders in council were supposed to be repealed, and which had not heard of the war : it would be absurd, to suppose, that there were any such, so long after the event had taken place. The instructions, therefore, must be considered as having been originally intended to apply to vessels sailing with a knowledge of the war, as well as to those sailing without that knowledge. Again, what was the great object government had in view in issuing these instructions ? No doubt, to give our citizens an opportunity of withdrawing their property from the enemy’s country, and bringing it to the United States. Our citizens had immense funds in England ; the whole commercial capital of the United States was there ; it was an object of vast importance to get it home ; and so long as Great Britain would permit us to withdraw
103
173	’	SUPREME COURT	[Feb’y
The Alexander.
it, it was our interest to afford to our citizens every possible facility in aid of that permission. This was the policy of our government, and this the source of the instructions.
4.	This was not a capture jure "belli. The cruizer was afraid of running the risk of damages for an illegal capture. An understanding was, therefore, had between the parties, which was considered as being mutually beneficial, that the captor should preserve his claim to any British goods which might be found on board, and that the residue should remain to the claimants. A single man only, not a prize crew, was put on board the Alexander. The prize-master alone was utterly unable to secure the vessel against a rescue, should one be attempted. He was utterly unable to bring her into port, without the aid of the hands originally belonging to her. How, then, can it be considered as a capture ? But if the court should finally decide it to be a capture, we shall contend, that it was only partial, a capture of the British goods only.
Pitman, contra, contended, on behalf of the captors. 1. That Samuel Welles being in England at the time of the purchase of the cargo, he is to be presumed there animo manendi, and is clothed with a British character.
'711 *$• That the suppression of papers connected with the origin of the
-* voyage, affords a sufficient presumption of a concealment of enemy interests, to subject the vessel and cargo to condemnation. 3. That the vessel and cargo, being taken in trade with the enemy, are condemnable to the captors as enemy’s property.
1.	As to the first point. It appearing that S. Welles was residingin England, at the time of the purchase of the property in question, it is incumbent on him to explain the circumstances of his residence there. This has not been done. The presumption, then, must be, that he was in England animo manendi; that the property was, of course, hostile and liable to condemnation. The Bernon, 1 Rob. 87, 103.
2.	On the second point little need be said. Suppression of papers is always a suspicious circumstance. In the present case, it will, no doubt, have its due weight with the court.
3.	Third point. That here was an actual trading with the enemy, the claimants do not attempt to deny ; but they would justify it on the ground of necessity. They say, that the vessel was captured by the enemy and carried into Ireland, where she was compelled to sell her cargo, and had no other means of securing the proceeds, but by laying them out in the purchase of British goods. This plea of necessity comes with a very bad grace from the claimants. If there were any necessity, it was one voluntarily brought upon themselves. They voluntarily, and, as we contend, unnecessarily, placed themselves and their property in the power of the enemy, after a knowledge of the war ; and can, therefore, claim no indulgence on the ground of necessity.
The cases which have been cited in which Sir William Scott speaks with indulgence of withdrawing funds, are inapplicable to the present case. Where the withdrawing of funds is spoken of, those funds only are meant which were in the enemy’s country before the war; which was not the case here. Besides, the cases cited depend not on trade with the enemy, but on domicil. *A license to withdraw the property would not have 104
1814]	OF THE UNITED STATES.	175
The Alexander.
been granted in such a case as the present, in England. The president of the United States, acting on English principles, could not have granted a license, supposing him to havt? the same power in relation to the subject which the king of England has. But he has no such power. Congress has not invested him with it, though they might have done so ; and this court, it is presumed, will not undertake to say, that the present is a case in which a license would have been granted, supposing the president to have possessed the power. No such power, then, having been granted by congress, it is to be presumed that they did not intend there should be any exception to the general rule, that trade with the enemy is unlawful.
But it has been urged, that this case comes within the president’s instructions of 28th of August, and that this capture, being in violation of those instructions, is void. The vessels contemplated by those instructions are described as vessels coming from British ports, “ in consequence of the alleged repeal of the British orders in council.” Now, it is clear, that the Alexander did not sail from the enemy’s port, in consequence of that alleged repeal; she cannot, therefore, be within the meaning of the instructions. The delivery of the instructions to cruizers, after the case contemplated by them no longer existed, is quite unimportant, notwithstanding the great stress which has been laid upon that circumstance by the claimants. The thing is very easily accounted for. The instructions may have continued to be issued through mere inattention : but the counsel for the claimants, in the explanation which he has attempted, has given to them a construction in direct hostility both with their letter and spirit. See letter from the secretary of state to Mr. Russell, of August 21st, 1812, accompanying the president’s message of December 1812.
It has been also contended, that there was no capture. But here is the property before the court, and we trust they will not restore it, unless noncapture be fully proved ; and even then there can be no restoration, unless the claimants prove their right; which they have not *yet done.
They have produced no title papers, no documents whatever, proving '■ property in themselves. On this point of non-capture, which was insisted on in the courts below, the district court ordered furthei* proof. We contend, 1. That as the preparatory examinations prove a capture, no further proof should have been ordered. 2. That the further proof establishes the fact of the capture. 3. That the proof upon this order offered by the claimants, was inadmissible, being the depositions of the master and mate, who were examined in preparatory.
As to the putting no prize crew on board, that, is a circumstance which m no degree alters the nature of the case ; it is not essential to capture. The capture is always made, before either a prize-master or crew are put on board ; and if the circumstances of the captured vessel be such as to do away all apprehension of rescue, and inspire confidence that the crew will bring her into port, there is no reason why the property of the captor may not be retained as well by a prize-master alone, as by a considerable crew. The object, in such cases, in putting a prize-master on board, is merely to keep possession, and show that the vessel is not abandoned. The Resolution, 6 Rob. 21 ; The William and Mary, 4 Ibid. 316, 386.
Pinkney, on the same side.—If the declaration of war is to be considered
'	105
176	SUPREME COURT	[Feb’y
The Alexander.
as confining captures to property belonging to British subjects, municipally speaking, there is an end of the belligerent rights of the United States upon the ocean. But it is not so to be considered ; it is to be construed by the law of nations.
The claimants seemingly deny that there was any capture in this case ; but they in fact contend, not for non-capture, but abandonment. We contend, that there was a capture, and that it has not béen abandoned. It *was unnecessary to put a prize crew on board, to navigate the vessel to the United States, for she was already bound thither. If it was the intention of the captor to abandon her, why put any person on board ? The very circumstance of putting a prize-master on board, clearly evidences an intention not to abandon. It is perfectly immaterial, whether the capture was absolute or conditional only, to secure the British property found on board : to secure that, it was necessary to capture the whole : the capture cannot be considered as partial.
It is said, on the part of the claimants, that there is no general rule of the law of nations, that every trading with the enemy is unlawful. We are of a different opinion. Bynkershoek lays down the rule. Bynk. Q. J. P. lib. 1, c. 3. Vattel gives it by implication. He says, that, in time of war, not only the two belligerent nations, in their politic capacity, are enemies, but that all the subjects of the one are enemies to all the subjects of the other inclusively. Vattel, lib. 3. c. 5, § 70. Sir William Scott, in the case of The Hoop, 1 Rob. 167, has laid down the rule—the universal rule. The exception which he allows to this general principle is, that, under certain circumstances, funds may be withdrawn, with license from the warmaking power. So, in the United States licenses for the same purpose may be granted by the same power. But this, as has been already observed, is not a case of withdrawing funds ; the funds entitled to the benefit of the exception are such only as were in the country before the war.
It is said by the counsel for the claimants, that the intention to sail to England was not carried into effect, and therefore, no illegal act was committed, even supposing that the act, if committed, would have been illegal. But we contend, that the offence was consummated by the overt act of sailing for the enemy’s country several days. Such is the law in the case of blockade. Such also, it is stated to be, by Sir William Scott, in the case of a vessel sailing to a port which was captured, during the voyage, by the nation to which the vessel belonged. By all the analogies of law, an intention in part executed completes the offence. The Columbia, 1 Rob. 132, 156.
*But it has been denied, that the act, if carried into execution, would have been illegal, in the present case ; it has been urged, that the safety of the property required it. But the law of nations does not permit a man to secure his property, by taking it to the enemy’s country. The case of Ildllet n. Jenks was cited, as supporting the claim of the appellants. But there, compulsion to sell and to take the produce of the enemy’s country in payment, was part of the case stated. Here, the purchase of a returncargo, was voluntary ; which materially alters the case. Welles ought to have left his funds in the enemy’s country.
As to the additional instructions of the president, they clearly do not embrace this case, either by thejr letter or spirit. An expectation had been raised, that, upon the repeal of the orders in council, our non-intercourse 106
1814]	OF THE UNITED STATES.	178
The Alexander.
would cease. The instructions were intended to meet this case—to redeem the pledge, and save the national faith. These instructions are explained by the act of congress of January 2d, 1813, authorizing the remission of the forfeitures incurred under the non-intercourse. That act directs the secretary of the treasury to remit the forfeitures in the case of such American property only, as sailed before the 15th September 1812 ; a time by which the merchants in England were presumed to have been undeceived. The proviso to the act of 13th July 1813, does not alter the nature of the instructions ; it leaves them to be expounded by the courts.
Dexter, in reply.—This is a more favorable case than if the property had been in the enemy’s country before the war. The object in going to England, was merely to save the property from British capture, to which it was exposed, and for this purpose to pass through the enemy’s country in disguise—conduct perfectly justifiable in a case like this.
As to the capture, no evidence has been produced to prove the fact. If there had been any agreement that this should be considered as a capture, we will admit, *that it would have been one. But no such agreement r*, is shown ; it does not appear that anything of the kind was intended. L But supposing it to have been a capture by agreement; even then, the extent of the capture must be limited by the terms of that agreement. The Jonge Jacobus Baumann, 1 Rob. 204, 243.
There is no evidence of Welles being in England animo manendi.
Monday, March 7th, 1814. (Absent, Todd. J.) Marshall, Ch. J., delivered the opinion of the court, as follows :—The principles settled in the case of The Rapid decides this cause, so far as respects the character of the Alexander and her cargo. In open sea, unpressed by any peculiar danger, with a full knowledge of the war, she changes her course and seeks an enemy’s port. If such an act could be justified, it were vain to prohibit trade with the enemy. The subsequent traffic in the enemy country, by which her return-cargo was obtained, connects itself with this voluntary sailing for an enemy port; nor does the circumstance that she was carried by force into Ireland, when her actual destination was England, break the chain. The conduct of the Alexander is much less to be defended than that of the Rapid.
But it is alleged, by the claimants, that in this case there was no actual capture. This allegation cannot, in the opinion of the court, be sustained. 1 hat the America took possession of the Alexander, with the intention of making prize of that part of her cargo which might be deemed British, is not controverted. How was this intention to be executed, how was this part of the cargo to be* libelled, if it was not captured ? And if such part of the cargo as might eventually be British, was captured, and the whole remained together in the vessel, how can the capture be considered as partial ?
The inability of the prize master to secure the captured vessel against a rescue, should one be attempted, his inability to bring in the vessel, without the aid of the hands belonging to her, is, in reason, no proof of abandonment. If the circumstances of the captured vessel be such as to do away all apprehension of rescue, and inspire confidence that the crew will bring her into port, no reason is perceived, why the property of the captor may
107
179	SUPREME COURT	[Feb’y
The Julia.
not be retained as well by a prize-master alone, as by a considerable detachment from his crew. The cases cited to this point by the counsel for the captors are entirely satisfactory.
But it has been truly observed, that it is not non-capture, but abandon-* ment, for which the complainants in fact contend. *But while the ' J whole cargo remains together, claimed by the captor, if it be enemy property, how can any part of it be said to be abandoned ? If it was entirely abandoned, for what purpose was one of the crew of the America put on board the Alexander ?
With as little reason do the claimants seek to shelter themselves under the instructions of the 28th of August 1812. Those instructions apply, in express terms, to such American vessels as have sailed from Great Britain for the United States, 11 in consequence of the alleged repeal of the British orders in council.” A vessel which sailed while those orders were not alleged to be repealed, cannot bring herself within these instructions. But it is alleged, that these instructions are still issued, and must mean something. Rather than ascribe their continuance to inattention, the counsel for the claimants would give them a construction in direct hostility with their letter and spirit. Were this reasoning even admitted to be correct, which it is not, it would become the duty of the court to be astute in finding some object to which they might possibly apply. It is possible, though certainly it is barely possible, that some vessels which sailed from England while the orders of council were supposed to be repealed, may not yet have reached the United States. It would be more reasonable, to reserve these instructions for such possible case, than to apply them to cases which can neither be brought within their words nor their meaning. The sentence is affirmed, with costs.
Sentence affirmed.
*181]	*The Julia, Luce, Master.
War.—Enemy’s license.
The sailing on a voyage under the license and passport of protection of the enemy, in furtherance of his views or interests, constitutes such an act of illegality, as subjects the ship and cargo to confiscation, as prize of war.
The Julia and Cargo, 1 Gallis. 594, affirmed.
This was an appeal from the Circuit Court for the district of Massachusetts.
D. Davis, for the claimants.—The brig Julia and cargo, consisting of about three hundred hogsheads of salt, were captured by the United States’ frigate Chesapeake, Samuel Evans, commander, about the last of December 1812, and libelled and condemned in the district court of Massachusetts. Upon appeal to the circuit court, the sentence of condemnation was affirmed, and the claimants now appeal to this court.
The allegation, in the libel, is, that the property belongs to British subjects. The facts proved and relied upon by the claimants, and which are fully substantiated by the documents contained in the record, are as follows : That the Julia and cargo were owned wholly by the claimants, who are native American citizens ; that she was documented as an American
108
1814]
OF THE UNITED STATES.
The Julia.
181
ship, for a voyage from Baltimore to Lisbon, with a cargo of corn, flour and bread ; that she sailed with this cargo, from Baltimore to Lisbon, where she arrived in safety ; that the outward cargo was there sold to Portuguese merchants, in that port, and a return-cargo of salt purchased with a part of the proceeds of the outward cargo ; and that, as the Julia was returning to Boston, her port of discharge, with her homeward cargo, she was captured by the Chesapeake ; that all the transactions of the voyage were really and truly for account of the claimants, and that, in point of fact, no connection, intercourse, trade, supply or other matter or thing relative thereto, was ever had, made, intended or contemplated with the enemy, in the whole course of this voyage.
It is admitted by the claimants, that copies of the following documents signed and granted by Admiral Sawyer and Andrew Allen, late the British consul at Boston, were filed in the courts below, and, for the *reasons r*jg2 stated by the learned judges, admitted in evidence, viz :	L
1st. A license from Admiral Sawyer, in the words following :
“ By Herbert Sawyer, Esq. vice-admiral of the blue, and com-[seal.] mander-in-chief of his majesty’s ships and vessels employed and to be employed in the river Saint Lawrence, along the coast of Nova Scotia, the islands of Anticosti, Madelaine and Saint John, and Cape Breton and the bay of Fundy, and at and about the island of Bermuda, or Somers’ Islands, &c. Whereas, Mr. Andrew Allen, his majesty’s consul at Boston, has recommended to me Mr. Robert Ewell, a merchant of that place, and well inclined towards the British interest, who is desirous of sending provisions to Spain and Portugal, for the use of the allied armies in the Peninsula, and whereas, I think it fit and necessary that encouragement and protection should be afforded him in so doing. These are, therefore, to require and direct all captains and commanders of his majesty’s ships and vessels of war which may fall in with any American, or other vessel bearing a neutral flag, laden with flour, bread, corn or peas, or any other species of dry provisions, bound from America to Spain or Portugal, and having this protection on board, to suffer her to proceed, without unnecessary obstruction or detention in her voyage ; provided she shall appear to be steering a due course for those countries, and it being understood, this is only to be in force for one voyage and within six months from the date hereof. Given under my hand and seal, on board his majesty’s ship Centurion, at Halifax, this fourth day of August, one thousand eight hundred and twelve.
“ By command of the vice-admiral. H. Sawyer, Vice-Admiral.” William Ayre.”
*2d. The following document signed by Andrew Allen.	[*183
“To the commanders of his majesty’s ships of war or of private armed ships belonging to subjects of his majesty. Whereas, from the consideration of the great importance of continuing a regular supply of flour and other dried provisions to the allied armies in Spain and Portugal, it has been deemed expedient by his majesty’s government, that, notwithstanding the hostilities now existing between Great Britain and the United States, every degree of encouragement and protection should be given to American vessels,4 laden with flour and other dry provisions, and bond fide bound to
109
183	SUPREME COURT	[Feb’y
The Julia.
Spain or Portugal. And whereas, in furtherance of these views of his majesty’s government, Herbert Sawyer, Esq., vice-admiral and commanderin-chief on the Halifax station, has addressed to me a letter, under the date of the 5th of August 1812 (a copy whereof is hereunto annexed), wherein I am instructed to furnish a copy of his letter, certified under my consular seal, to every American vessel so laden and bound, destined to serve as a perfect safeguard and protection of such vessel in the prosecution of her voyage. . Now, therefore, in obedience to these instructions, I have granted to the American brig Julia, Tristram Luce, master, of 159 tons burden, now lying in the harbor of Boston, and bound to Baltimore, for the purpose of taking in a cargo of flour and corn, and proceeding thence to a. port in Spain or Portugal, not under French domination, the annexed documents, requesting all officers commanding his majesty’s ships of war, or private armed ships belonging to subjects of his majesty, to give to the said vessel all due assistance and protection in the prosecution of her voyage to Spain or Portugal, and on her return thence, to her port of original departure, laden with salt or with specie to the net amount of her outward cargo, or in ballast only.
“ Given under my hand and seal of office, at Boston, [consular seal] this eighteenth day of September 1812.
Andrew Allen, jun.,
His majesty’s consul.”
*1«41	* C0Py Admiral Sawyer’s letters to A. Allen, referred
J' to in the preceding document, and certified under the consular seal;
as follows :
(copy)	“ His Majesty’s ship Centurion,
At Halifax, the 5 th of August 1812.
“ Sir : I have fully considered that part of your letter of the eighteenth ultimo, which relates to the means of insuring a constant supply of flour and other dried provisions, to the allied armies in Spain and Portugal, and to the West-India islands ; and being aware of the importance of the subject, concur in the proposition you have made. I shall, therefore, give directions to the commanders of his majesty’s squadron under my command, not to molest American vessels unarmed and so laden, bond fide bound to British, Portuguese or Spanish ports, whose papers shall be accompanied with a certified copy of this letter under the consular seal. I have the honor to be, sir, your most obedient humble servant,
“To Andrew Allen, Esq.,	H. Sawyer, ■ Vice-Admiral.”
His majesty’s consul, Boston.”
“ Office of his Britannic Majesty’s Consul.
“ I, Andrew Allen, jun., his Britannic majesty’s consul for the states of Massachusetts, New Hampshire, Rhode Island and Connecticut, hereby certify, that the annexed paper is a true copy of a letter addressed to me by Herbert Sawyer, Esq., vice-admiral and commander on the Halifax station.
“ Given under my hand and seal of office, at Boston, in the state of Massachusetts, this eighteenth day [consular seal] of September, in the year of our Lord, one thousand eight hundred and twelve.
Andrew Allen, jun.”‘
110
1814]	OF THE UNITED STATES.	*185
The Julia.
*If the opinions of the courts below, in admitting copies of these documents to be received as evidence, were correct-, then it is also admitted, that these licenses and letters had been obtained for, and were found on board the Julia, at the time of her capture.
Upon this statement, and upon the evidence contained in the record, the claimants submit two points to the decision of the court. 1. That the mere acceptance or possession of the British license and documents, do not subject the property to condemnation. 2. That if the peculiar terms of the license in this case create a presumption unfavorable to the other claimants, either of an intention to supply the enemy, or of any unlawful intercourse with the enemy, such presumption is entirely destroyed by the evidence in the case, which shows that no such supply or intercourse did ever, in fact, take place.
As to the first point. The nature and effect of an enemy’s license, so far as respected the acceptance, possession or use of such a document by an American citizen, were so fully and ably pointed out in the case of The Aurora (post, p. 203), that the counsel for the claimants, is content to rely upon; and to refer the court to the arguments and authorities which were submitted and quoted in that case, upon this point.
But as to the second point. If the Julia had been captured, on her passage to Lisbon, with these British documents on board, there might have been some ground for a condemnation. The suspicious or obnoxious parts of them, such as those which state that “ Elwell is well inclined towards the British interest,” and that he contemplates furnishing supplies to the allied armies in the Peninsula, might have raised a presumption that such was his intention, and would have cast the onus probandi upon him, or upon those in whose hands the license might be found. But it is contended, that if, upon furnishing the proof, it shall appear, that no unlawful intercourse with the enemy ever did, in fact, take place, and, moreover, that no such intercourse was ever even intended *to be held with the enemy, the pre- r^.-. sumption against the claimants, arising from the terms of the British *-documents will be entirely destroyed, and the complainants left in a state wholly free from guilt, both legal and moral.
That this is a correct position, the court is referred to the case of Ihe Matilda, decided in the North Carolina Circuit, by the chief justice of the United States, and reported in the 4 Hall’s L. J. 478. In that case, the license was granted, after the war, and for the express purpose of a trade and supply to the British West India Islands : but there was no evidence that any act of trading had been committed. In that case, the Chief Justice is said to have declared, “ that there was no evidence of a criminal intent, except that of the license ; that the obtaining the license was to deceive the enemy, which the claimants lawfully might do ; and that the case was cleared of all doubts by the evidence, which stated the real object of the voyage.”
In the case of The Abby, 5 Rob. 254, it is expressly stated to be law, “ that there must be an act of trading to the enemy country, as well as the intention ; that there must be a legal as well as moral illegality.” It is, in the same case, stated, that “ no case has been produced, in which a mere intention to trade with the enemy, contradicted by the fact, inures to condemnation.” Upon both points (said Sir William Scott), “ I am of opinion, that the claimant is entitled to restitution. On the 1st, there was no illegal act; on the 2d, there was neither intention nor act.”
Ill
186
SUPREME COURT
The Julia.
[Feb’y
There is no principle better known or established by the writers both upon law and ethics, than? that there must be both a will and an act to constitute an offence. The act is necessary to demonstrate the depravity of the will : a vicious will, without a vicious act, is no offence.
It is not denied, that the Julia and her outward cargo were the property of the claimants : it is not denied, that the Julia, on her departure from Baltimore, was documented, in every respect, as required by law, as an American ship bound from Baltimore to Lisbon, with a cargo of flour, corn and bread. It is not denied, that the Julia, with this cargo on board, was ordered to proceed, and that she did in fact proceed, to Lisbon ; and that it was the intention of the owners, that the cargo should be there sold, to the best advantage, to merchants or other subjects of that government; nor is it denied, that the Julia and cargo did, in fact, proceed to Lisbon for * these purposes. *It is not denied, that this cargo of corn, flour and
'J bread, was in fact carried to Lisbon, there landed, and sold to a house of merchants of that city. It is also a fact, probably not disputed, that the cargo of salt, with which the Julia was laden, and with which she was captured on her homeward voyage, was purchased with the proceeds of the cargo sold at Lisbon. And it is not pretended, that there was any intercourse with the enemy, at Lisbon, or with any of his agents ; or that there was, in reality, any sale, contract or other transaction by the claimants, or their agents, that any part of the cargo, or the proceeds of it, should, in any manner, serve as a supply or come to the hands and possession of the enemy. On the other hand, it does appear, from all the evidence in the case, that the whole object of the voyage was to export the cargo of the Julia to Lisbon, there to be sold, and the proceeds to be invested in such funds as are pointed out in the owner’s letter of instructions to the master. The intention to trade with, or supply the enemy, is proved only from the primA facie evidence of the license and other British documents ; and this evidence is fully explained and counteracted by the whole mass of evidence in the case, showing the real object of the voyage, and that no supply, trading or intercourse were in fact had with the enemy.
If the bare possession or acceptance of a license condemns the property which it purports to protect, the Julia must be condemned ; but if the presumptive or prim<l facie evidence resulting from the possession of the license, however obnoxious may be the terms of it, can be explained and counteracted by evidence of the facts, the Julia and cargo must be restored. The former position, it is conceived, will never be sanctioned by this court ; and if the latter be not established, the claimants will be severely punished for an act which they never committed, and which they never intended to commit, viz4, that of trading with, and supplying the enemies of their country. *	, *The case of the Julia, therefore, turns upon a question of fact. Did
the Julia pursue a voyage to a neutral port, and was her cargo disposed of to the subjects of a neutral country, or did she pursue the voyage and furnish the supplies to the enemy, which appear to have been the objects of the British admiral? It is repugnant to law and reason, that a man shall not be permitted to prove his innocence ; and when he has proved it, that he should be held guilty and punished. If taken with the mainour, may he not prove that he came honestly by the goods ?
If a contrary doctrine be established, it will lead to one inevitable result;
112
1814]	OF THE UNITED STATES.	188
The Julia.
viz., a prohibition of all trade from, this to a neutral country which happens to be in alliance with Great Britain : it will be in fact, declaring that a cargo of flour shall not be exported to Spain or Portugal, because the neutral subjects, to whom it may be there sold, may sell it again to their British allies.
This case is distinguishable from, and stands upon much firmer ground than that of The Aurora. In that case, the ship was taken on her outward passage, and (as it was alleged) out of her course to her ostensible port. It was, therefore, impossible for the claimants to remove the presumption against them, arising from the possession of the license, by the subsequent events of the voyage. But in this case, everything is explained, and every doubt or suspicion removed, by the evidence showing the bond fide objects, and ultimate termination of the voyage. The case is thus cleansed of everything that might be presumed to be foul, by the unhappy terms of the license, or the officious and unofficial interpositions of Mr. Allen. The case must turn upon the 'bond fide views and intention of the claimants, and upon the evidence that, in point of fact, no unlawful intercourse between them and the enemy ever existed, or was ever contemplated. If they have merely accepted a license, but have made no unlawful use of it, they cannot be injured by it.
Hush, Attorney-General, in behalf of the United States.—It is utterly impossible, that, if any American property, embarked in a trade under an enemy license, can be the subject of prize, this should escape. The transaction is the most obnoxious of its class ; and presents the *leading ri! question in its most advantageous forms for the captors. The object •-of the enemy was supply to the allied armies in Portugal and Spain., The engagement to execute that purpose was the consideration of the protection granted by the license. The purpose was executed in fact, and in strict conformity with the engagement. The homeward cargo was purchased with the proceeds of the outward ; and when captured, was still under the protection of the license. If the circumstances in this case do not amount to a trading with the enemy, there is no such thing. If this license (or rather these licenses) should not be held to give to the property a hostile character, no license, whatever may be the facts with which it is combined, can produce that effect.
There can be no foundation for restitution in this case but one. It has been doubted, whether American property can, for any cause, become subject to confiscation as prize, when captured by a privateer ; and it will be contended (as it is understood), in the case of 77ie Frances, that it cannot. The capture on this occasion, however, was made by a national vessel, in virtue of the declaration of war, and the public law of the world operating upon it. The attorney-general does not believe that this difference in fact creates any difference in the legal conclusion ; because he supposes that privateers have, upon the sound construction of the act of congress, the same rights of capture with national vessels ; but he contends, that even if it should be held that the rights of capture, vested by their commissions in private armed vessels, are confined to property strictly (not constructively) British, the rights of national vessels are not so restricted.
The court is referred to the opinion at large (in the transcript) of the 8Cranch—8	113
189	SUPREME COURT	[Feb’y
The Julia.
learned judge by whom this cause was decided in the circuit court, for a very able discussion of the doctrine which it involves.
Monday, March 7th, 1814. (Absent, Todd, J.) Story, J., delivered # Qnl the opinion of the court, as follows :—*The facts of this case, and the -* grounds upon which a decree of condemnation was pronounced in the circuit court, fully appear in the opinion of that court which accompanies this record. That opinion has been submitted to my brethren, and a majority of them concur in the decree of condemnation, upon the reasons and principles therein stated. It is not thought necessary to repeat those reasons and principles in a more formal manner ; it is sufficient to declare as the result of them, that we hold, that the sailing on a voyage under the license and passport of protection of the enemy, in furtherance of his views or interests, constitutes such an act of illegality, as subjects the ship and cargo to confiscation as prize of war ; and that the facts of the present case afford irrefragable evidence of such act of illegality. The judgment of the .circuit court is, therefore, affirmed, with costs.
The following is the opinion of the circuit court of Massachusetts, ¡referred to in the foregoing opinion :
“The Julia and cargo was captured, as prize, by the United States’ frigrate Chesapeake, commanded by Captain Evans, on the 31st December 1812. From the preparatory evidence and documents, it appears, that she sailed .from Baltimore, on or about the 31st October 1812, bound on a voyage to Lisbon, with a cargo of corn, bread and flour ; and the capture took place <on the return-voyage to the United States. The vessel and cargo were documented as American, and as owned - by the claimants, who are American . citizens. The vessel had on board sundry documents of protection from British agents, which were delivered up to the captors, and together with the other ship’s papers, were put on board of the prize, in the custody of the prize-master ; and these documents were the unquestionable cause of the ; capture. It appears, that the American master and crew were left on board the prize, and during the subsequent voyage to the United States, these British documents were taken from the custody of the prize-master, surreptitiously, and without his knowledge as to the time or manner : he alleged * expressly that they were stolen, and this allegation seems *admitted
J by the master, in a supplementary affidavit, who, however, denies any knowledge or connection in the transaction. The prize-master took exact copies of these documents, for the purpose of sending them to the secretary of the navy ; which copies have been produced in court, and verified by his affidavit. All the other original documents have been faithfully produced. Upon the examination of the master, upon the standing interrogatories, on the 18th February 1812, although there are several interrogatories, and particularly the 16th and 27th, which point directly to the subject-matter, he did not state the existence of any British document, passport, safeguard or protection; and what is quite as remarkable, he expressly declared, that he knew not upon what pretence, nor for what reason, the vessel and cargo were captured. It was not until after the time assigned for the trial, and on the 8th of March 1813, that the master, by a supplementary affidavit (which was admitted through great indulgence, and contrary to the general practice of prize courts), attempted to explain his omission, and to vindicate
114
1814]	OF THE UNITED STATES,	191
The Julia.
his misconduct. The apology is equally weak and futile. At the time when these examinations were taken, the interrogatories had been drawn up with care and deliberation. The commissioners were present to explain, to the understanding of every man intent on truth, the meaning of any question which might appeal’ obscure. The master was a part-owner of the vessel and cargo, and the regular depository of all the papers connected with the voyage. It is utterly incredible, that he should not recollect, on his examination, the existence of these British documents. They were put on board for the special safeguard and security of the vessel and cargo. Indeed, independent of them, the risk of capture would have been imminent. A master can never be admitted to be heard, in a prize court, to aver his ignorance or forgetfulness of the documents of his ship. It is his duty to know what they are ; and he cannot be believed ignorant of ther contents, without overthrowing all the presumptions which govern in prize proceedings. Looking to the whole conduct of the master, it seems to be irreconcilable with the rules of morality and fair dealing ; and I have great difficulty in exempting him from the imputation of being guilty of a wilful suppression of the truth.
*At the hearing, a preliminary objection was taken to the intro- r*jg2 duction of the copies of the British documents, upon the ground, L that the originals, as the best evidence, ought to be produced. The rule undoubtedly applies, when the originals are in existence, and in the possession or control of the party. The extraordinary disappearance of these important papers, under the circumstances of this case, I can have little doubt was occasioned by fraudulent subtraction. There is no reason to impute this subtraction to the prize-master. The documents were to him a very important protection ; they constituted the avowed reason of the capture, as the mate and some of the seamen testify. It is true, that the master has declared that he knew not the pretence of capture ; but it can hardly be believed, that he could be ignorant of a fact which so materially affected his interest. I feel myself bound to make very unfavorable inference against him ; and if, in odium spoliations, I impute the subtraction to some person on board connected with the voyage, and in the confidence of the master, it is measuring out no injustice to one who appears to deem misstatements and concealments no violent breach of good faith. I shall, therefore, admit the copies, verified as they are, as good evidence in these proceedings ; and I will add, that if a single material fact in favor of the claimants had depended upon the supplementary affidavit of the master, I should have felt myself compelled to repudiate it, in order to vindicate the regularity of prize proceedings, and suppress the efforts of fraud to derive benefit from after-thoughts and contrivances. These remarks are not made without regret; but public duty requires that manifest aberrations from moral propriety should not receive shelter in this court.
“ Having disposed of this preliminary objection, I now proceed to consider the two questions which have been so ably discussed in this case. 1st. Whether the use of an enemy’s license or protection, on a voyage to a neutral country in alliance with the enemy, be illegal, so as to affect the property with confiscation. 2d. If not, whether the terms of the present license distinguish this case unfavorably from the general principle.
*The British documents which were on board, and which, for con- [*193
115
193	SUPREME COURT	[Feb’y
The Julia.
ciseness, I haVe termed a license, are as follows : [It is thought unnecessary to insert these documents here, as they are to be found at length in the argument of the claimant’s counsel in the former part of this report.]
“ In approaching the more general question which has been raised in this case, I am free to acknowledge, that I feel no inconsiderable diffidence, both from the importance of the question, and the different opinions which eminent jurists have entertained respecting it.1 Nor am I insensible also, that it has entered somewhat into political discussions, and awakened the applause and zeal of some, and the denunciations of others, considered merely as a subject of national policy, and not of legal investigation. It has now become my duty to examine it ; and, whatever may be my opinion, I feel a consolation, that it is in the power of a higher tribunal to revise mÿ errors, and award ample justice to the parties.
“ At the threshold of this inquiry, I laid it down as a fundamental proposition, that, strictly speaking, in war, all intercourse between the subjects and citizens of the belligerent countries is illegal, unless sanctioned by the authority of the government, or in the exercise of the rights of humanity. I am aware, that the proposition is usually laid down in more restricted terms, by elementary writers, and is confined to commercial intercourse. Bynkershoek says, ‘ Ex natura belli, commercia inter hostes cessare, non est dubitandum. Quamvis nulla specialis sit commerciorum prohibitio, ipso tamenjure belli commercia esse vetita, ipsæ indictiones bellorum satis declarant."1 Bynk. Q. J. P. lib. 1, c. 3. And yet it seems not difficult to perceive, that .his reasoning extends to every species of intercourse. Valin, in his commentary on the French ordinance, speaking of the reason of requiring the name and domicil in a policy, says, ‘ Est encore de connaître, en temps de guerre, si maigre Vinterdiction de commerce, qu’ emporte toujours toute declaration de guerre, les sujets du Roi ne font point commerce avec les ennemis de V Etat, ou avec des amis ou allies, par Vinterposition desquels on *1041 ferait passer aux ennemis *des munitions de guerre et de bouche, ou d"1
J outres effets prohibes; car tout cela, étant defundu comme préjudiciable a T état, serait sujet a confiscation, et a être déclaré de bonne prise? Lib. 1, tit. 6, art. 3, p. 31. In another place, adverting to a case of neutral, allied, and French property, on board an enemy ship, &c., he declares it subject to confiscation, because ‘ C” est favorisér le commerce de T ennemi et faciliter le transport de ses denrées et marchandises, ce qui ne peut -convenir aux traites d’alliance ou de neutralité, encore moins aux sujets du Roi auxquels toute communication avec V ennemi est etroitement défendu sur peine même de la vie? Lib 3, tit. 9, art. 7, p. 253. And Valin, Traité des Prises, chap. 5, § 5, p. 62.	.
“ From this last expression, it seems clear, that Valin did not understand the interdiction as limited to mere commercial intercourse. In the elaborate judgment of Sir W. Scott, in The Hoop, 1 Rob. 165, 196, the illegality of commercial intercourse is fully established as a doctrine of national law : but it does not appear that the case before him required a more extended examination of the subject. The black book of the admiralty contains an article which deems every intercourse with the public enemy an indictable offence. This article, which is supposed to be as old as the reign of Edw. III., directs
1 See Fisher’s Prize Cases.
116
1813]
OF THE UNITED STATES.
194
The Julia.'
the grand inquest ‘ Soit enquis de tous ceux qui entrecommunent, vendent ou achètent avec aucuns des enemis de notre Seigneur le Roi sans license spécial du Roi ou de son admiral? But independent of all authority, it would seem a necessary result of a state of war, to suspend all negotiations and intercourse between the subjects of the belligerent nations. By the war, every subject is placed in hostility to the adverse party. He is bound by every effort of his own to assist his own government, and to counteract the measures of its enemy. Every aid, therefore, by personal communication, or by other intercourse, which shall take off the pressure of the war, or foster the resources, or increase the comforts of the public enemy, is strictly inhibited.
“No contract is considered as valid between enemies, at least, so far as to give them a remedy in the courts of either government ; and they have, in the language of the civil law, no ability to sustain a persona standi in judicio. The ground upon which a trading with the enemy *is pro-hibited, is not the criminal intentions of the parties engaged in it, or *-the direct and immediate injury to the state. The principle is extracted from a mere enlarged policy, which looks to the general interests of the nations, which may be sacrified under the temptation of unlimited intercourse, or sold by the cupidity of corrupted avarice. In the language of Sir William Scott, I would ask, ‘ Who can be insensible to the consequences that might follow, if every person, in time of war, had a right to carry on a commercial intercourse with the enemy, and, under color of that, had the means of carrying on any other species of intercourse he might think fit ? The inconvenience to the public might be extreme ; and where is the inconvenience on the other side, that the merchant should be compelled, in such a situation of the two countries, to carry on his trade between them (if necessary) under the eye and control of the government charged with the care of the public safety ?’ Nor is there any difference between a direct intercourse between the enemy countries, and an intercourse through the medium of a neutral port. The latter is as strictly prohibited as the former. The Jonge Pieter, 4 Rob. 65, 79.
“ It is argued, that the cases of trading with the enemy are not applicable, because there is no evidence of actual commerce ; and an irresistible presumption arises from the nature of the voyage to a neutral port, that no such trade is intended. If I am right in the position, that all intercourse, which humanity or necessity does not require, is prohibited, it will not be very material to decide, whether there be a technical commerce or not. But it is clear, beyond all doubt, that no inference can arise of an actual commerce ? The license is issued by the agents of the British government, and, I must presume, under its authority. It is sold (as it is stated) m the market ; and if it be a valuable acquisition, the price must be proportionate. If such licenses be an article of sale, I beg to know, in what respect they can be distinguished from the sale of merchandise ? If purchased directly of the British government, would it not be a traffic with an enemy ? If purchased indirectly, can it change the nature of the transaction? It has been said, *that if purchased of a neutral, the trade in r*. licenses is no more illegal than the purchase of goods of the enemy L fabric, bond fide conveyed to neutrals. Perhaps, this may, under circumstances, be correct : but I do* not understand that the purchase of goods of
117
196	SUPREME COURT	[Feb’y
The Julia.
enemy manufacture, and avowedly belonging to an enemy, is legalized by the mere fact of the sale being made in a neutral port. The goods must have become incorporated into the general stock of neutral trade, before a belligerent can lawfully become a purchaser. If such licenses be a legitimate article of sale, will they not enable the British government to raise a revenue from our citizens, and thereby add to their resources of war ? Admit, however, that they are not so sold, but are a measure of policy adopted by Great Britain to further her own interests, and ensure a constant supply of the necessaries of life, either in or through neutral countries ; can it be asserted, that an American citizen is wholly blameless, who enters into stipulations and engagements to effect their purposes? Is not the enemy thereby relieved from the pressure of the war, and enabled to wage it more successfully against the other branches of the same commerce, not protected by this indulgence ?
“ It is said, that the case of a personal license is not distinguishable from a general order of council authorizing and protecting all trade to a neutral country. In my judgment, they are very distinguishable. The first presupposes a personal communication with the enemy, and an avowed intention of furthering his objects, to the exclusion of the general trade by other merchants to the same country ; it has a direct tendency to prevent such general trade ; and relieves the enemy from the necessity of resorting to a general order of protection ; it contaminates the commercial enterprises of the favored individual with purposes not reconcilable with the general policy of his country ; exposes him to extraordinary temptations to succor the enemy by intelligence ; and separates him from the general character of his country, by clothing him with all the effective interests of a neutral. Now, these are some of the leading principles upon which a trade with the enemy has been adjudged illegal, by the law of nations. On the other hand, a general order opens the whole trade of the neutral country to every mer-chant. It pre-supposes no incorporation in enemy interests : it
J enables the whole mercantile enterprise of the country to engage upon equal terms with the traffic ; and it separates no individual from the general national character. It relaxes the rigor of war, not only in that particular trade, but collaterally opens a path to other commerce. There is all the difference between the cases, that there is between an active personal co-operation in the measures of the enemy, and the merely accidental aid afforded by the pursuit of a fair and legitimate commerce.
“ In the purchase or gratuity of a license for trade, there is an implied agreement that the party shall not employ it to the injury of grantor ; that he shall conduct himself in a perfectly neutral manner, and avoid every hostile conduct. I say, there is an implied agreement to this effect, in the very terms and nature of the engagement. I am warranted in declaring this, from the uniform construction put by Great Britain on the conduct of her own subjects acting under licenses. Can an American citizen be permitted, in this manner, to carve out for himself a neutrality on the ocean, when his country is at war ? Can he justify himself in refusing to aid his countrymen who have fallen into the hands of the enemy on the ocean, or decline their rescue? Can he withdraw his personal services, when the necessities of the nation require them ? Can an engagement be legal, which imposes upon him the temptation or necessity of deeming his personal
118
1814]	OF THE UNITED STATES.	197
The Julia. ‘
interest at variance with the legitimate objects of his government ? I confess, that I am slow to believe, that the principles of national law, which formerly considered the lives and properties of all enemies as liable to the arbitrary disposal of their adversary, are so far relaxed, that a part of the people may claim to be at peace, while the residue are involved in the desolations of war. Before I shall believe the doctrine, it must be taught me the highest tribunal of the nation ; in whose superior wisdom and sagacity, I shall most cheerfully repose.
“ It has been said, that no case of condemnation can be found on account of the use of an enemy license. Admitting the fact, I am not disposed to yield to the inference, that it is, therefore, lawful. It is one of the many novel questions which may be presumed to arise out of *the extra-ordinary state of the world. The silence of adjudged cases proves *• nothing either way : it may well admit of opposite interpretations. The case of The Vrow Elizabeth, 5 Rob. 2, has been cited by the captors, in support to the more general doctrine. It was a case where the ship had the flag and pass and documents of an enemy’s ship ; and the court held, that the owner was bound by the assumed character. There is no similarity in the case before the court. The ship and cargo were documented as American, and not as British property. As little will The Clarissa, 5 Rob. 4, cited on the other side, apply. It was, at most, but a license given by the Dutch government, allowing a neutral to trade within its own colony : in all other respects, the ship and property were avowedly neutral ; and unless so far as the English doctrines, as to the colonial trade could apply, there was nothing illegal or improper in waiving any municipal regulations of colonial monopoly, in favor of a neutral. There was nothing which com-promitted the allegiance or touched the interest of the neutral country. If, however, this license had conferred on the neutral the special privileges of a Dutch merchant, or had facilitated the Dutch policy in warding off the pressure of the war, it would probably have received a very different determination. See The Vreede Scholty, 5 Rob. 5, note a ; The Rendsborg, 4 Ibid. 98, 121. Wé all know, that there are many acts which inflict upon neutrals the penalty of confiscation, from the subserviency which they are supposed to indicate to enemy interests ; the carrying of enemy dispatches ; the transportation of military persons ; and the adopting of the coasting trade of the enemy. The ground of these decisions is the voluntary interposition of the party to further the views and interests of one belligerent, at the expense of the other : and I cannot doubt that the Clarissa would have shared the general fate, but from some circumstance of peculiar exemption.
“ By the prize code of Lewis XIV. (which I quote the more readily, because it is, in general, a. compilation of prize law as recognised among civilized nations), it is a sufficient ground of condemnation that a vessel bears commissions from two different states. Valin (Traite des prises, p. 53) says, ‘ A. Vegard du vaissean ou se trouvèrent des commissions de deux differens princes ou *états, il est egalement juste qyV il soit declare pjag de bonne prise, soit parce qv? il se peut arborer le pavillon de lun, en consequence de sa commission, sans faire injured Vautre, ceci, uu reste, regarde les Français comme les étranger s' In what consists the substantive difference between navigating under the commissions of our own, and also of another sovereign, and navigating under
119
199	SUPREME COURT	[Feb’y
The Julia.
the protection of the passport of such sovereign, which confers or compels a neutral character ? Valin, in another place (sour I'ordinance, lib. 3, tit. 9, art. 4,p. 241), declares, ‘ si sur un navire Français U y a une commission d'un prince 'etranger avec cette de France, il sera de bonne prise, quoiqu'il n'ait arboré que la pavïllion Français.' It is true, that he just before observes, ‘ que ce circonstance de deux congés ou passe-ports, ou de deux connaissements, dont Vun est de France, et l'antre d'un pays ennemi, ne suffit pas seule faire declarer le navire ennemi de bonne prise, et que cela doit dépendre des circonstances capables défaire découvrir sa véritable destination.' But Valin is referring to the case of an enemy ship, having a passport of trade from the sovereign of France. I infer from the language of Valin, that a French ship, sailing under the passport, congé, or license of its enemy, without the authority of its own sovereign, would have been lawful prize.
“ This leads me to another consideration ; and that is, that the existence and employment of such a license affords a strong presumption of concealed enemy interest, or at least, of ultimate destination for enemy use. It is inconceivable, that any government should allow its protection to an enemy trade, merely out of favor to a neutral nation, or to an ally, or to its enemy. Its own particular and special interests will govern its policy ; and the quid pro quo must materially enter into every such relaxation of belligerent rights. It is, therefore, a fair inference, either that its subjects partake of the trade, under cover, or that the property, or some portion of the profits, finds its way into the channel of the public interests.
“ It has been argued, that the use of false or simulated papers is allowable in war, as a stratagem to deceive the enemy, and elude his vigilance. However this may be, it certainly cannot authorize the use of real papers *9ool a h°stile character, to carry into effect the avowed purpose *of the
J enemy. We may be allowed to deceive our enemy ; but we can never be allowed to set up, as such a deception, a concert in his own measures for the very purposes he has prescribed.
“ An allusion has been made to the passports or safe-conducts granted, in former times, to the fishing-vessels of enemies ; and it has been argued, that such passports or safe-conducts have never been supposed to induce the penalty of confiscation. This will at once be conceded, as to the belligerent nation who granted these indulgences ; but as to the other nation, where such passports were not guarantied by treaty or mutual pacts, I have no authority to lead me to an accurate decision. The French ordinance of 1543 authorized the admiral to make fishing truces with the enemy ; and where no such truces were made, to deliver to the subjects of the enemy, safe-conducts for fishing, upon the same stipulations as they should be delivered to French subjects by the enemy. This, therefore, was an authority to be exercised only in cases of reciprocity ; and it seems to have been abolished, from the manifest inconveniences, which attended the practice. Valin, sur ord. lib. 1, p. 689, 690. I do not think that any argument in favor of the validity of the present license (unrecognised as it is by our government) can be drawn from these ancient examples as to fisheries.
“It has been argued, that the voyage was lawful to a neutral port, and the mere use of a license cannot cover a lawful voyage with the taint of illegality. This, however, is assuming the very point in controversy. It is 120
1814]	OF THE UNITED STATES.	200
The Julia.
not universally true, that a destination to a neutral port gives a bond fide character to the voyage. If the property be ultimately destined for an enemy port, or an enemy use, it is clear, that the interposition of a neutral port will not save it from condemnation. The Jonge Pieter, 4 Rob. 65, 79. Suppose, in the present case, the vessel and cargo had been destined to Lisbon, for the express use of the British fleet there, could there be a doubt, that it would have been a direct trade with an enemy ? Whether the voyage, therefore, be legal or not, depends not merely upon the destination, but the ultimate application of the property, or the ascertained intentions of the party. A contract to carry provisions to St. Bartholomews, *for r*9ni the ultimate supply of the British West-India islands, would be just *-as much an infringement of the law of war, as a contract for a direct transportation. On the whole, I adopt, as a salutary maxim of war, the doctrine of Bynkershoek ‘Vetatur quoquo modo hostium utilitati considered It is unlawful in any manner to lend assistance to the enemy, by attaching ourselves to his policy, sailing under his protection, facilitating his supplies, and separating ourselves from the common character of our country.
“ I am aware, that the opinion which I have formed as to the general nature of licenses, is encountered by the decisions of learned judges for whom I entertain every possible respect. This circumstance alone, independent of the novelty and importance of the question, would awaken in my own mind an unusal hesitation as to the correctness of my own opinion : but, after much reflection upon the subject, I have not been able to find sufficient grounds to yield it ; and my duty requires that, whatsoever may be its imperfections, my own judgment should be pronounced to the parties.
“ I am glad, however, to be relieved from the painful necessity of deciding the more general question, by the peculiar terms of the present license, which I consider as affording irrefragable proof of an illicit intercourse with the enemy, and a direct contract to transport the cargo for the use of the British armies in Spain and Portugal. The very preamble to the license of Admiral Sawyer shows this in a most explicit manner, and discloses facts which it is no harshness to declare, are not very honorable to the principles or the character of the parties.
“ It has been attempted to distinguish the present claimants from Mr. .Elwell, to whom the original license was granted. It could hardly have been expected, that such an attempt would be successful. The assignees cannot place their derivative title on a better footing than the original party. They must be considered as entering into the views and contracting to effectuate the intentions of the latter ; and, at all events, the illegality of the employment of the license attaches indissolubly to-their conduct. If it were material, however, it might deserve consideration, how far an actual assignment is *shown in the case. It rests on the affidavit of one of the claimants, and on the mere face of papers which carry no very L decisive character, and are quite reconcilable with concealed interests in other persons, as the records of prize courts abundantly show. However, I only glance at this subject, as it in no degree enters into the ingredients of my judgment.
“ A very bold proposition w*as, at one time, advanced in the argument by the claimants’ counsel, that if this cargo had been actually destined to Portugal, for the use of the allied armies of Great Britain and Portugal, or
121
202	SUPREME COURT	[Feb’y
The Julia.
even for the use of the British army, it would not be an offence against the laws of war. In the sequel, if I rightly understand, this proposition, in this alarming extent, was not contended for ; and certainly, it is utterly untenable, upon the principles of national law.
“ But it was insisted on, that the British armies in Portugal and Spain were to be considered as incorporated into the armies of those kingdoms, and as not holding the British character. If I could so far forget the public facts of which, sitting in a prize court, I am bound to take notice, there is sufficient in the papers before me to prove the contrary of this suggestion. In Admiral Sawyer’s license and Mr. Allen’s certificate, they are expressly called the allied armies ; thereby plainly admitting a separate charactei’ and organization : and so, in point of fact, we all know it to be ; if, indeed, the British character be not predominant throughout these countries. I reject the distinction, therefore, as utterly insupportable in point of fact.
“ It has been further argued, that if the conduct be illegal, it is but a personal misdemeanor, in no degree affecting the vessel and cargo ; and at all events, that the illegality was extinguished by the termination of the outward voyage. The principles of law afford no countenance to either part of the proposition. If the property be engaged in an illegal traffic with the enemy, or even in an attempt to trade, it is liable to confiscation as well on the return as on the outward voyage : and it may be assumed as a proposi-*20^1 Uon, liable to few, if any, exceptions, *that the property which is ren-
J dered auxiliary or subservient to enemy interests, becomes tainted with forfeiture.
“ I cannot but remark, that the license in this case, issued within our own territory, by an agent of the British government, carries with it a peculiarly obnoxious character. This circumstance, which is founded on an assumption of consular authority that ought to have ceased with the war, affords the strongest evidence of improper intercourse. The public dangers to which it must unavoidably lead, by fostering interests, within the bosom of the country, against the measures of the government, and the breach of faith which it imports in a public functionary receiving the protection of the government, can never be lost sight of in a tribunal of justice. I forbear to dwell further on this delicate subject. Upon the whole, I consider the property engaged in this transaction as stamped with the hostile character ; and I entirely concur in the decision of the district judge, which pronounced it subject to condemnation.”
Judgment affirmed.
122
1814]
OF THE UNITED STATES.
203
The Aurora, Pikr, master.
Enemies' license.
The acceptance and use of an enemy’s license, on a voyage to a neutral port, prosecuted in furtherance of the enemy’s avowed objects, is illegal, and subjects vessel and cargo to confiscation.
It is not necessary, in order to subject the property to condemnation, that the person granting the license should be duly authorized to grant it, provided the person receiving it takes it with the expectation that it will protect his property from the enemy.
Sailing, with an intention to further the views of the enemy, is sufficient to condemn the property, although that intention be frustrated by capture.
This was an appeal from the Circuit Court for the district of Rhode Island. The following were the material facts of the case :
Some months after the declaration of war, the ship Aurora, documented. as American property, and owned by Thomas M. Clarke and Ebenezer Wheelright, the claimants, who are American citizens, sailed from Newburyport to Norfolk, in ballast. At the latter place, she took in a cargo consisting of bread, flour, corn, &c., and sailed from thence, on or about the 12th November 1812, ostensibly for St. Bartholomews, a neutral island belonging to the Swedes, for which port she had obtained *her clearance. The cargo was consigned to the supercargo of the ship. On the 2Gth *• November 1812, she was captured by the American privateer schooner, Governor Tompkins, on the high seas. At the time of capture, she was to be leeward of St. Bartholomews, and had on board a British license, which she exhibited to the captors, supposing them to be British. This license consisted of three documents :
1st. A pass for the West Indies, exclusively, from Andrew Allen, his Britannic majesty’s consul residing at Boston ; to which was annexed a copy of a letter, under the consular seal, from Admiral Sawyer to Mr. Allen, as follows :
“ To the commanders of any of his majesty’s ships of war, or of private armed ships belonging to his majesty. Whereas, from a consideration of the great importance of continuing a regular supply of floui* and other dry provisions'and lumber to the British islands in the West Indies, it has been deemed expedient by his majesty’s government, that, notwithstanding the hostilities now existing between Great Britain and the United States of America, every protection and encouragement should be given to American vessels, laden with flour and other dry provisions and lumber, and bound to the British islands in the West Indies. And whereas, in furtherance of these views of his majesty’s government, Herbert Sawyer, Esq., vice-admiral and commander-in-chief of his majesty’s squadron on the Halifax station, has directed to me a letter, under date of the 5 th August 1812 (a copy whereof is hereunto annexed), wherein I am instructed to furnish a copy of his letter, certified under my consular seal, to every American vessel so laden and bound to the West Indies, which is designed as a perfect safeguard and protection to such vessel in the prosecution of such voyage. Now, therefore, in pursuance of these instructions, I have granted to the American ship Aurora, William Augustus Pike, master, burthen 257 47-95ths tons, now lying in the harbor of Newburyport, and bound to Norfolk for a cargo of flour, corn and other, dry provisions, for St. Bartholomews, the annexed document, to avail only in a direct *voyage to the West Indies, and back r*2nK to the United States f requesting all the officers commanding his L
123
.205	SUPREME COURT -	[Feb’y
The Aurora.
majesty’s ships of war, or of private armed vessels belonging to subjects of his majesty, not only to suffer the said Aurora to pass without molestation, but also to extend to her all due assistance and protection in the prosecution of her voyage to the West Indies and in her return to the United States laden with merchandise not exceeding the nett amount of her outward cargo, Fseal 1 or ba^ast only- Given under my hand and seal of office, this first *-	■ day of October 1812.	Andrew Allen, jun.,
His majesty’s consul.”
To the above pass was annexed the following copy of a letter from Admiral Sawyer, certified under the consular seal, and alluded to in the above document.
“ His majesty’s ship Centurion,
At Halifax, the 5th of August 1812.
“ Sib : I have fully considered that part of your letter of the 18th ultimo, which relates to the means of insuring a constant supply of flour and other dry provisions to Spain and Portugal, and to the West-India islands ; and being aware of the importance of the subject, concur in the proposition you have made. I shall, therefore, give directions to the commanders of his majesty’s squadron under my command, not to molest American vessels so laden and unarmed, bond fide bound to British, Portuguese or Spanish ports, whose papers shall be accompanied with a certified copy of this letter, under the consular seal. I have the honor to be, sir, your most obedient humble servant,	H. Sawyer, Vice-Admiral.”
“ Andrew Allen, Esq.
British consul, Boston.”
*206]	*“ Office of his Britannic Majesty’s Consul.
“I, Andrew Allen, junior, his Britannic majesty’s consul for the states of Massachusetts, New Hampshire, Rhode Island and Connecticut, do hereby certify, that the annexed paper is a true copy of a letter addressed to me by H. Sawyer, Esq., vice-admiral and commander-in-chief of his majesty’s squadron on the Halifax station. Given under my hand and seal of office, F eat. 1 Boston, in the state of Massachusetts, this first day of October, L in the year of our Lord, one thousand eight hundred and twelve.
Andrew Allen, jun.”
2d. The following certificate of the consul :
“ Office of his Britannic Majesty’s Consul.
“I, Andrew Allen, junior, his Britannic majesty’s consul for the states of Massachusetts, New Hampshire, Rhode Island and Connecticut, do hereby certify, that the ship Aurora, Wm. Augustus Pike, being bound to St. Bartholomews (on account of the existing law of the United States, which prevents her return to the United States from a British port) contemplates fulfilling the object comprised in the accompanying license from H. Sawyer, Esq., vice-admiral and commander-in-chief on the Halifax station, through a neutral port in alliance with Great Britain. Given under my hand and seal of office, at Boston, in the state of Massachusetts, this second day [seal.] of October, in the year of our Lord, one thousand eight hundred and twelve.	Andrew Allen, jun.”
3d. The following general pass for the West Indies.
124
1814]
OF THE UNITED STATES.
The Aurora.
206
“Office of his Britannic Majesty’s Consul.
“I, Andrew Allen, jun., his Britannic majesty’s consul for the states of Massachusetts, New Hampshire, *Rhode Island and Connecticut, request all officers commanding his majesty’s ships of war, or private *• armed ships belonging to subjects of his majesty, to permit the American ship Aurora, William Augustus Pike, master, now lying in the harbor of Newburyport, and furnished with a protection from Vice-admiral Sawyer, for the purpose of carrying flour, corn, lumber and other necessary provisions to the West Indies, and proceeding to Norfolk, in ballast, for a cargo, to pass without molestation. Given under my hand and seal of office, at Bos-Is al 1 ^on’ *n state of Massachusetts, this first day of October, in the L J year of our Lord, one thousand eight hundred and twelve.
> Andrew Allen, jun.”
The Aurora was carried into Newport, Rhode Island, and there libelled. The circuit court of that district condemned vessel and cargo as prize to the captors from which sentence, the claimants appealed to this court.
Hunter, for appellants.—The libel, in this case, sets forth that the sailing was for the purpose of supplying the British West-India colonies, and that the papers stating the voyage to St. Bartholomews, were fraudulent and collusive ; and urges the condemnation of vessel and cargo, on the following grounds : 1. That the possession of and sailing with a British license is cause of capture and condemnation. 2. That the voyage of the Aurora was intended as an indirect voyage to a British port, through St. Barts. 3. That the real destination of the ship was to a British port.
On the first point, it is contended, on the part of the claimants, that the having on board a British license or *pass, in a lawful trade to a neu- r*9flp tral country, could not, before the act of congress of August 2d, 1813, *• prohibiting the use of British licenses, subject a vessel to capture. This is clear from the act itself, the operation of which is not to commence from its passage, but, with regard to vessels then in port, was to take effect in five days after the promulgation of the act; with regard to vessels at a distance from the United States, not until the 1st of November ; and in some cases, not before the 1st of December following. Hence, it is evident, that the legislature did not consider this act as merely declaratory of the law of nations on the subject, but as then, for the first time, making the use of a British license by an American vessel, illegal. (3 U. S. Stat. 84.)
But we are bound to meet the general proposition, which is, that the use of such a license gives a hostile character to the property and the voyage. The doctrine, that any intercourse with the enemy exposes to condemnation, has been supposed to be very ancient; but we find no case of a decision upon the principle, until the year 1747, when the bill was brought into parliament in consequence of insurance made for enemies. Pari. Debates, vol. 26, p. 178, Sir William Murray’s speech, on the subject of insuring enemy property ; and Gist v. Mason, 1 T. R. 84.
The rule appears to us to be unreasonable and impolitic. Where is the harm of taking advantage of a relaxation of the rights of war by the enemy ?
1 The original condemnation was in the district court, Howell, J., whose sentence was
affirmed by the circuit court: see 4 Hall’s L. J. 473; 1 Car. L. Rep. 204.
125
208
SUPREME CQURT
[Feb’y
The Aurora.
How can that be a crime, when granted by the policy of the enemy, which would have been no crime if obtained by force—by conquest ? It is not less for our own interest to take advantage of such permission from the enemy, than it is for his interest to grant it. It is a public benefit.
The general rule by which to determine the national character of a vessel, is the domicil of the owner. Here, the owners were American citizens. The case of a vessel sailing under the flag or assumed character of a country, to which she does not belong, is admitted to be an exception to the general rule. But here was no sailing under such assumed character; all the papers *the Aurora were American, except the one in question, which J cannot of itself be sufficient to give a hostile character to the holders of it, nor to the vessel and cargo. Jenks v. Ballet, 1 Caines 64 ; Chitty’s Law of Nations 58 : Case of the Clarissa cited in The Vrow Elizabeth, 5 Rob: 4.
The only prohibition, existing at the time of the sailing of the Aurora was to take a license to a British port. That was prohibited by the act of July 6th, 1812, § 7. By that act, we admit, all commercial intercourse with the enemy was rendered unlawful; but we contend, that it was not unlawful to use a British license, in a neutral voyage. The Boop, 1 Rob. 167, 200. Suppose, Great Britain should think proper to permit a particular neutral trade ; suppose, she were even to protect it by convoy ; are we bound to refuse to accept such permission—such protection? Valin laughs at the English for restoring, in the form of insurance, the captures made by their cruizers ; but does not censure the French merchant for taking it.
The voyage in this case was not made by the license, but merely made safer by it. The voyage was certainly lawful without it: and a license to pursue a voyage which was lawful without it, cannot make that voyage unlawful. Pamphlet of Cases decided in the District Courts of Pennsylvania and Massachusetts, p. 80,81 ;l Judge Davis’ opinion on the use of British licenses ; Judge Peters’ opinion ; 1 Ves. 317 ; Du Ponceau’s Bynk. 166.
On the second point, viz : That the voyage of the Aurora was intended as an indirect voyage to a British port through St. Barts, it is contended by the claimants, that there is no evidence to justify the fact assumed. Was this a bond fide voyage to St. Barts ? On the decision of this point, the whole case turns. In discussing this question, all the circumstances of the case should be taken into consideration. Vide Portalis’ opinion in the case *o ni ^lG ^dou-> contained in a note to the case of The * Charming Betsy,
J 2 Cranch 98 ; Vide also, Ch. J. Marshall’s opinion in the case of The Matilda, decided in North Carolina, 4 Hall’s Law Journal 487.
With respect to those circumstances attending the transaction, which,, on first view, are perhaps calculated to excite a suspicion that this was not a bond fide voyage to St. Barts, it may be observed, that it was the object of the Aurora to deceive the enemy, and thereby obtain an exemption from capture, during the voyage, by inducing him to suppose that the cargo was ultimately intended for the British. Such an imposition, in a case like the present, we conceive was justifiable. What motive could the Aurora have had for sailing to a British island, rather than to St. Barts ? At a British island, she could only take in a cargo of rum ; and the importation of such
1 Now generally known as Fisher’s Prize Cases.
126
1814]	OF THE UNITED STATES.	210
The Aurora.
a cargo was prohibited by our own laws. At St. Barts, she could take in a general West-India cargo. Motives of interest, therefore, would have induced her to go to the latter place rather than the former. But suppose, the intention was to go to a British port; was that intention executed ? It was not. But according to the decision in the case of The Abby, 5 Rob. 254, there must be an act of trading as well as an intention, in order to subject the vessel to condemnation.
On the third point, which, it is presumed, constitutes the stress of the case, we contend, that the real destination of the Aurora was not to a British port, and that the condemnation on the ground of a British supply being intended and proceeded in, is erroneous and against proof. That the supply of the British West Indies was the object of Admiral Sawyer in granting the license, we do not deny: but what his intention was, is perfectly immaterial: such was not our intention, in accepting it. Our object was to escape capture ; and with that view we obtained a license from the enemy, by inducing him to believe that we intended to furnish supplies to his islands.
*What is said by Allen, the consul, is mere surplusage : his author- _ ity extended no farther than to certify Admiral Sawyer’s letter : hav-ing done this, he was functus officio. But suppose, the license granted by Allen to have been valid, it was only for a voyage to St. Barts, and would not have protected the Aurora in any other voyage : that was the voyage insured.
J. Woodward, contra.—With regard to the act of August 2d, 1813, which has been said, by the counsel for the claimants, to prove that the use of British licenses, previous to the passage of that act, was not unlawful, we are still of opinion, that the act is merely in affirmation of the law of nations. It is also cumulative ; it adds penalties to what was before unlawful; but does not make anything unlawful which was not so before. The latter clause in the 3d section of the act, providing “ that nothing contained in the said act shall be so construed as to arrest or stay any prosecutions,” &c., was intended to guard against the construction which the claimants have now attempted to give it. The several periods of time allowed to vessels in different situations, to obtain notice of the act, were allowed them, in order that they might be enabled to avoid the new penalties.
Trading with the enemy was an indictable offence at common law. 2 Roll. Abr. 173 ; but it was necessary for congress to fix the penalty for trading on land: this they have accordingly done in the act of July 6th, 1812. By the course of the admiralty, the thing itself was liable to forfeiture for trading with the enemy. The British papers on board the Aurora show a case of supply ; and therefore, the question of pass or license is immaterial. The pass was expressly for the purpose of supplying the enemy.	z
But suppose, the papers do not prove a case of supply, the use of the license On the high seas is, of itself, sufficient to give the property a hostile character. The license in this case is essentially different from a general license by an order in council. There, no special favor—no particular benefit, is granted. *The use of a hostile protection in the prosecution r*o19 of a neutral trade, gives a hostile character to the voyage. Sailing *•
127
212	SUPREME COURT	[Feb’y
The Aurora.
under a hostile convoy is good ground of condemnation ; Sir William Scott denominates it “ illicit protection.” Sailing under two commissions is also cause of condemnation. Valin, p. 241, lib. 3, art. 9. All these cases are analogous to the present. The Aurora was sailing under the physical force of the enemy. Admiral Sawyer’s letter requires the British naval force to assist her in the prosecution of her voyage. She must, therefore be considered as having placed herself under the protection of the enemy, and as having, consequently, abandoned her national character. Trading with an enemy was cause of forfeiture at common law ; and whatever was cause of forfeiture at common law, is good cause of condemnation in the admiralty. The Walsingham Packet, 2 Rob. 69, 82. The case of Jenks n. Hallet, cited by the claimants, is not applicable to the present case : we were not then at war with France.
Sir William Scott, in the case of The Vigilantia, 1 Rob. 11, 13, has laid it down as a known and established rule, that if a vessel is navigating under the pass of a foreign country, she is considered as bearing the national character of that nation under whose pass she sails. Now, what was the license in question but such a pass ? The license is not a document under the law of nations. The granting of it is the exercise of a municipal right —a prerogative to the crown. The king, however, has no right to grant licenses to any but his own subjects, without a particular act of parliament authorizing him so to do : there is no case in which he has granted a license to strangers, without such an act of parliament. If a license be granted, without such authority, the person who takes it can take it only as a subject. Chitty’s Law of Nations 256 ; Ibid. 316 ; 2 Roll. Abr. 173, tit. Prerogative ; The Hoop, 1 Rob. 199, 200 ; 2 Tucker’s Bl. Com. 258 ; Chitty’s Law of Nations 278 ; Reeves 358.
*	_ Any commercial intercourse, direct or indirect, with *the enemy,
J is illegal, and cause of condemnation : its illegality does not depend on contract. The intervention of a neutral port makes no difference. Potts v. Pell, 8 T. R. 555 ; The Jonge Pieter, 4 Rob. 68-9, 83-4 ; The Hoop, 1 Ibid. 165, 196 ; Chitty’s Law of Nations 13-15.
When the Aurora was taken, she was out of the course to St. Barts, and very far to the leeward of that island. These circumstances afford a strong suspicion that her destination was to some other port. The return-cargo was British produce, and prime! facie British property : if it was not, it is on the claimants to show it. It appears, that the master was kept ignorant of the real destination of the Aurora, and that the supercargo, during his examination in preparatorio, was guilty of pre.varication. These circumstances alone are good cause of condemnation. Chitty’s Law of Nations 314. As to what has been said with regard to the intention not being carried into effect, we contend, that it was carried into effect to every legal purpose. An overt act was sufficient to constitute the offence ; and sailing with the license was such an overt act.
Pinkney, on the same side.—The rule, that trade with the enemy is illegal, results necessarily from the declaration of war, and is included in it: there was no necessity for any subsequent law to enforce the rule. Jt has be said, that no judicial decision on this subject is to be found of an earlier date than 1747. It is true, Sir William Scott, in his enumeration of cases 128
1814]	OF THE UNITED STATES.	213
The Aurora.
where this question was agitated, has gone no farther hack than that date : hut Sir John Nicholls, in his argument in the case of Potts v. Bell, has cited cases from Sir Edward Simpson’s MS. Reports in the Admiralty, where this principle was decided to be correct as early as 1704 and 1707 ; and it is to be presumed, that those *decisions were founded upon former *-cases. See also Henkle v. Boy al Exchange Ins. Co., in 1749, 1 Ves. 317. The general rule is above all impeachment.
This case may be considered, as it regards, 1st. The license alone : 2d. The license as connected with the transaction itself.
First, then, we contend, that no American citizen, in a time of war, has a right voluntarily to place himself under the protection of the enemy. War exists between the nations in their political capacity, and between the individuals of each nation respectively. The power of making peace follows the power of making war. Individuals cannot lawfully make peace, even for themselves. But the acceptance of a license from the enemy is making a peace with him so far as it goes ; it is a partial truce—a partial cessation-of hostilities. Transactions of this kind are productive of great evil. The American citizen who accepts a license from the enemy, does that which is highly injurious to the interests of his country : the indulgence of the eneifty imposes on him an obligation to act as a neutral, contrary to his duty as a citizen ; it is an individual bribe; it has a tendency to poison the wholevirtue and patriotism of the country, to undermine the government,,' to* alienate the affections of the citizens, and to place the nation in the power of the enemy.
The circumstance, that acts of congress have been passed prohibiting trade with the enemy, the use of his licenses, &c., has been urged by the claimaints, as evidence that such communication with the enemy was not unlawful, prior to the passage of those acts. But we contend, that it was unlawful under a well-established rule of the law of nations; and that if these acts have not repealed that rule, they cannot aid the claimants in the present case. Sir William Scott’s observations in the case of The Hoff-nung, are in point. 2 Rob. 137, 165.
But we have a special answer to the argument of the Claimants, The act of July 6th, goes upon the presumption that the intercourse *-with the enemy which it prohibits, was before unlawful—it does not profess to create a new offence. Considering, then, this point as settled, the argument, that the act of 6th July prohibits the use of licenses to trade with British ports only, falls to the ground.
The case of ransom has been said to militate with the argument we have employed in support of the illegality of sailing under the protection of the enemy. But the cases are widely different. In a case of ransom, the captured vessel is compelled to make an agreement with the enemy; she is under the necessity of accepting their protection ; here, the transaction was perfectly voluntary.
The rule of 1756, declaring illegal the coasting trade permitted by the enemy in time of waf, which was prohibited by him in time of peace, is founded upon the same general principle. If, then, the permission only of the enemy gives a hostile character to vessels sailing under that permission, d fortiori, they require a hostile character by sailing under the protection of the enemy.
8 Cbanch—9	129
215	SUPREME COURT	[Feb’y
The Aurora.
But suppose, the claimants in this case did not mean to aid the British, but merely to benefit themselves at the expense of their country and their fellow-citizens ; still the object of the license and the obvious consequence of the voyage, was the supply of the British West Indies. This the claimants must have known. They knew also, that the pressure of the West Indies was one of the means which the United States were using to coerce the enemy : yet they become the agents of the British to prevent this pressure. If a neutral carry dispatches for one of the belligerent powers, it affords just cause of condemnation to the other : how much stronger is the case of a citizen of one of the belligerent nations furnishing the other with supplies.
It has been said, that here was only an intent to commit an illegal act *01 cl (supposing the acf contemplated to *be illegal), that there was no
-• corpus delicti. But we contend, that the very act of sailing with a view to execute the intention, constitutes the offence. Such is the law in case of blockade : if a vessel sail for a blockaded port, knowing, it to be blockaded, she thereby acquires a hostile character.
We might here contend, that the real destination of the Aurora was not to St. Barts, but to a British port ; for it appears that, when captured, she was 160 miles to the leeward of that island : but it is unnecessary to say anything on this point, as the principle is the same, and the vessel equally liable to condemnation, whether her destination were to a British port or to St. Barts : in the latter case, the cargo, it was well known, would be obtained by the enemy from the Swedes ; so that it was, in effect, the same thing as if it had been carried direct to the enemy.
Dexter, in reply.—It is the universality of the rule in question we mean to controvert; we deny that there is such a general rule. It is not to be found in Puffendorf, Grotius, Vattel or any of the other jurists, excepting Bynkershoek, whose rules of war are written in blood : and even he has . qualified the rule—he says himself that the rule prohibiting all commercial intercourse is done away by the laws of commerce. Valin only shows that a particular intercourse is forbidden by the law of France ; and in noticing British insurance, he does not condemn the French for procuring it. The case of Potts v. Bell proves that the doctrine in question has but recently been introduced : it is, however, in that case, admitted, with the exception of those cases where the royal license has been obtained ; but this exception must be taken as part of the rule itself : the general principle without the exception would be ruinous to the nation : the inconveniences which would arise from it are incalculable. In 1747, Lord Mansfield and Sir Dudley Ryder were of a different opinion as to the policy of the rule, and as to the principle of law. In Henkle v. Royal Exchange Assurance Co., Lord Hardwicke said, “It might be going too far to say, that all trading *2171 an enemy is unlawful; for the general doctrine would go a
J great way, even where only English goods were exported, and none of the enemy’s imported, which may be very beneficial.”
In this country, there has been no decision to establish the rule ; and if we take the British rule, we must take it with the power of dispensation : but the president has no such power : the sovereignty has been said to reside in the people : but the remedy by application to congress would be 130
1814]	OF THE UNITED STATES.	217
The Aurora.
too slow and uncertain. We must conclude, therefore, that in this country no such rule exists.
It has, nevertheless, been contended by the counsel for the captors, that the rule not only exists, but that it is universal. Is a man, then, bound to abandon all his property which may happen to be in the enemy’s country at the breaking out of a war ? Such would be the consequence of taking the rule without any exception. Some cases of intercourse with the enemy, it is true, are so palpably illegal, as to admit of no doubt on the subject; such as all traitorous intercourse, and perhaps a direct trade ; so also, if the intercourse be in consequence of a new enterprise undertaken since the commencement of hostilities : but many cases must necessarily occur, on the breaking out of a war, which ought certainly to form exceptions : such is the doctrine in England, where the excepted cases are provided for by the royal license, permitting intercourse with the enemy, under certain circumstances and with certain restrictions. In a country, then, where licenses cannot be obtained, all cases where they would be granted, if a power of granting them existed, must be cases of judicial exception to the general rule. Many occasions may and frequently do occur, during war, on which such intercourse with the enemy would be highly expedient, in a political view; occasions where the public good requires an exception ; and those, too, cases neither of necessity nor humanity, which must always be excepted.
It is not necessary to inquire, whether the mere acceptance of a license is ground of condemnation ; it is the sailing under a license which constitutes the offence : but *in our case, there was no sailing under the r*oiQ license. The license authorized a voyage to a British, Portuguese or L Spanish port: the voyage in the present case was to a port belonging to the Swedes : the letter of Allen, the consul, which has been said to authorize a voyage to a Swedish port also, is entitled to no regard. • Admiral Sawyer’s letter was the only protection : all the acts of Allen, except certifying that letter, were unauthorized and unofficial ; they were no protection to the Aurora. Allen’s letter shows, on the face of it, that the voyage to St. Barts was not covered by the license ; it merely expresses an opinion, that that voyage would answer the purposes contemplated by the British government, as well as a voyage to a British port.
It has been said, that the real destination of the Aurora was to a British port; and in support of the position, the circumstance of her being considerably to the leeward of St. Barts, when captured, has been urged in proof ; but the argument deserves little consideration ; it is a very common thing to fall to the leeward : besides, it appears, that the Aurora had been beating to the windward three days before she was captured, although when she first made the land, there were numerous British ports under her lee.
It has also been argued on the part of the captors, that a transshipment from St. Barts to an enemy port was intended : but there is no evidence even of this : nor was there any motive for such transshipment: the cargo would meet with as ready a sale at St. Barts as at a British Island : the superior advantage of taking in a return-cargo at the former place has been already noticed.
But it is said, that it was equally criminal to carry this cargo to St. Barts as to a port of the enemy, because the Swedes would probably dispose of it to the British. This argument also, we conceive to be whollv without foun
131
218	SUPREME COURT	[Feb’y
The Aurora.
dation : no decision to that effect has ever been pronounced: the case of the island of St. Eustatius, in the last war, goes to prove the reverse of this doctrine. Nothing, therefore, as we conceive, having been proved, on the part ♦on hi the captors, sufficient to subject the *property in question to con-
J demnation, we trust, that the court, on the consideration of the whole case, will decree restitution to the claimants.
Monday, March 7th, 1814. (Absent, Todd, J.) Livingston, J., delivered the opinion of the court.—The ship Aurora and cargo, owned by the claimants, who are American citizens, and documented as American property, were captured, on the 26th of November 1812, by the private armed ship Governor Tompkins, on an ostensible destination for St. Bartholomews. From the documents on board and the preparatory examinations, it appears, that the ship sailed from Newburyport to Norfolk, in ballast, took in her present cargo, consisting of bread, flour, corn, &c., at the latter place, and sailed from thence on the voyage on which she was captured, on or about the 12th of November 1812. The cargo was consigned to the supercargo of the ship ; and the destination thereof, upon the ship’s papers, supported by the preparatory examinations, was St. Bartholomews, for which island the ship obtained her clearance. At the time of capture, she was to the leeward of that island ; and certain passports or protections from the agents of the British government were found on board, which are familiarly known by the title of British licenses; which documents are as follows :(a)
Two questions have been made at the bar. 1. Whether the acceptance and use of an enemy’s license or passport of protection, on a voyage performed in furtherance of the enemy’s avowed objects, be illegal, so as to affect the property with confiscation ? 2. If so, whether there is anything in the present case, to exempt it from the general principle? The first point having just been decided in the affirmative, in The Julia (ante, p. 181), it only remains to inquire, whether there be anything in this case to exempt it from the general principle.
In the opinion of a majority of the court, it is not easy to discriminate *2Q01 be^ween these cases : both of the vessels *had licenses or passports -* of the same character, and substantially for the same purpose, except only that the object of the Julia was to supply the allied armies in Portugal, and the original intention of the Aurora was to go to the British West Indies. It is by no means clear, that this destination was ever changed ; but admitting that, from an apprehension of seizure, in case of her returning to the United States, after touching at a British port, she, in fact, sailed on a voyage to St. Bartholomews, this can make no substantial difference in her favor. Her object in going there was equally criminal, and subserved the views of the enemy, nearly, if not quite as well, as if her cargo had been landed in a British island ; of the real design of the voyage there can remain no doubt; for it abundantly appears, from the license itself, that the professed object of Admiral Sawyer, at least, in granting it, was to obtain a supply of provisions for the enemy ; and the court will not easily lend its ear to a suggestion, that notwithstanding the Aurora was found with a British protection on board, of so obnoxious a character, yet her owners
(a) See the statement at the beginning of the report of this case. 132
1814]	OF THE UNITED STATES.	220
The Aurora.
intended to deceive the enemy, either by going to a port not mentioned in it, or by disposing of her cargo in a way that would not have promoted his views. Without meaning to say, that such conduct may, under no circumstances whatever, be explained, the court thinks that there is no proof, in this case, to show that it was not the intention of the claimants to carry into effect the original understanding between them and Mr. Allen. For although the destination to St. Bartholomews be conceded, it is evident, that Mr. Allen, who acted as British counsel, supposed the views of Admiral Sawyer might be answered, as well in that, as in any other way ; nor is it clear, as was said at bar, that the documents which were received from Mr. Aile», which varied more in form than in susbstance from the admiral’s passport, would not have protected her against British capture, on a voyage to that island. The protection of Admiral Sawyer extended to unarmed American vessels laden with dry provisions, and bond fide bound to British, Portuguese or Spanish ports. The only modification or extension introduced by Mr. Allen, was the permission to go to a Swedish island, equally neutral with Spain and Portugal, in the vicinity of the British possessions. Whether all or any of these papers would have saved the Aurora from confiscation, in a British court of admiralty, this court is not bound *to assert ; it r*991 is sufficient, if that were the reasonable expectation of the parties, *-as it certainly was, and it is more than probable that such expectation would have been realized, considering the very important advantage which the enemy was to derive from them. In case of capture, there can be no doubt, that the claimants would have interposed these very papers, which are now supposed to have emanated from unauthorized agents, and probably, with success, as a shield against forfeiture. Why then, should they be permitted to allégé here, that they would have been ineffectual for that purpose ?
It is also insisted, that in this case, no illicit intercourse had actually taken place ; that the whole offence, if any, consisted in intention ; and that if a capture had not intervened, there was still a locus poenitentiæ, and no one can say, that even a project of going to St. Bartholomews, might not have been abandoned. In this reasoning the court does not concur ; but is of opinion, that the moment the Aurora started on the voyage for St. Bartholomews, with the license in question, and a cargo of provisions, she rendered herself liable to capture by the public and private armed ships of the United States, who were not bound to lie by, and see how she would conduct herself during the voyage, the consequence of which would be, that no right of capture would exist, until all chance of making it were at an end.
Judgment affirmed.
133
221
SUPREME COURT
[Feb’y
The Adventure.
Prize of war.—Salvage.
The case of a vessel and cargo, belonging to a citizen of one belligerent nation, captured on the high seas, by a cruiser of the other belligerent, given to a neutral, and by him brought into a port, and libelled in a court of his own country, between which and the nation to which the vessel originally belonged, war breaks out, before final adjudication, is to be considered as a case of salvage.1
One moiety adjudged to the libellants, and the other moiety to remain subject to the future order of the court from which the appeal was brought up; and to be restored to the original owner, after the termination of the war, unless legislative provision should previously be made for the confiscation of enemy’s property, found in the country at the declaration of war.
The act of bringing in the cargo, though consisting of articles, the importation of which was prohibited by law, was not considered, under the peculiar circumstances of this case, as subjecting the property to forfeiture.
The Adventure, 1 Brock. 235, reversed.
This was an appeal from the decree of the Circuit Court for the district of Virginia. The facts of the case, as stated by Johnson, J., in delivering the opinion of the court, were as follows :
The libellants were the master and crew of the American brig Three Friends. On the 14th November 1811, whilst on their voyage from Salem *999-1. to the Brazils, *with a valuable cargo on board, they were captured
J by the Nymphe and Medusa, French frigates, and by them the brig was plundered and burnt. On the 21st, the frigates captured the Adventure, a British ship, laden with British goods ; and, after taken out part of the cargo, made a present of the residue to the libellants. The fact of the gift was established by a writing under the hand of the captain of the Medusa, commander of the squadron, in which he says “Je donne au capi-tainc,” in the language of an unqualified donation. On the 23d November, they left the squadron, and arrived at Norfolk, on the 1st of February 1812, after a long and boisterous voyage, in a large ship, navigated by a very inadequate crew. On her arrival in the United States, she was libelled by the master and crew, as their property, acquired under the donation of the French captor; and the United States interposed a claim for the forfeiture incurred under the non-importation act. At the time of her arrival, peace existed between this country and Great Britain : but on the 18th of June following, and pending this suit, war was declared.
Pinkney, for the libellants, said, it was not his intention, at this time, to inquire, whether or not, this be a case for condemnation, under the non-intercourse act of March 1st, 1809 ; he did not mean to deny, that it is not. Waiving that question, therefore, for the present, he contended, that the property in controversy is either, a droit of admiralty, subject to salvage, or that it is to be considered as derelict. But no evidence has been produced in support of the latter supposition. It must, therefore, be considered as a oase of the former description, and a case too, of the most meritorious character.
If this be conceded, the next question is, what rate of salvage shall bu allowed ? The English rule on this subject is fixed only in the case of re-capture by government ships and privateers. The salvage allotted to
1 The Astrea, 1 Wheat. 125.
134
1814]	OF THE UNITED STATES.	222
The Adventure.
the first, is at the rate of one-eighth of the beneficial interest in the whole re-captured property ; to the last, one-sixth. In all other cases, the judge of court is at liberty to order such salvage as he shall deem reasonable. Sometimes, *the whole property saved is allowed ; sometimes, the moiety rjj5 only, and sometimes, less. The present case is one of extraordinary L merit.
In the court below, two points were made in behalf of the United States : 1. That this was a case of forfeiture, under the non-intercourse act of 1st of March 1809 : and if not, then, 2. That it was a case of salvage, and the rate to be allotted discretionary with the court.
Johnson, J., here suggested a doubt, whether it was not a case under the non-intercourse act ; and asked, whether the United States could rightfully seize the property in question, as a droit of admiralty, in port, or any other British property on the land ? He also observed, that there might be some difficulty with regard to the allotment of salvage, should this prove to be a case of that kind.
Harper, for the libellants.—On a capture of a vessel, the right of the captors is only inceptive : in order to complete that right, it is necessary to prosecute it to the condemnation of the vessel, in a court of competent jurisdiction. In the present case, the French captors transferred their right, whatever it was, to the American master and crew. Could they lawfully do this ? The decision of the question depends upon the doctrine relative to the transfer of a chose in action. We contend, that they could ; and that the transferees were consequently entitled, as captors, to prosecute the original capture.
But if the libellants are not entitled as captors, then it is a question, whether it be a case under the non-intercourse act, or a case of salvage. In order to bring it within the meaning of the non-intercourse act, it must be shown, that there was an intention to import for sale or use ; that there was a voluntary importation, and that the importation was from a foreign port or place. But here, there was no such intention, *here was no volun- r<s tary importation ; and no importation, as we conceive, from any «• foreign port or place, within the meaning of the act ; here was no intention to infract any law whatsoever ; it was a case of clear necessity ; the master and crew were obliged to bring in the ship, to save their own lives.
But it may, perhaps, be said, that though it was necessary to bring in the ship, it was not necessary to bring in the cargo. What then was to be done with it. Was it to be thrown into the sea? The British owner was not divested of his right. Such an act, therefore, would have been inconsistent with the neutral character which it was the duty of all Americans to preserve towards Great Britain, with whom we were then at peace. We conceive, that the course pursued by the libellants, was unexceptionable : they proceeded openly to the United States, and immediately on their arrival, delivered up the property, to be disposed of according to law. There is no appearance, throughout the whole transaction, of the smallest intention to violate any law whatever.
It must, therefore, be considered as a case of salvage ; and had the relations between Great Britain and the United States continued as they were at the time of the importation, the residue of the property in question, after
135
224	SUPREME COURT	[Feb’y
The Adventure.
deducting the salvage, must have been restored to the British owner. But the declaration of war has altered the nature of the case : the ship and cargo have now become enemy property, and as such, are claimed by the American government, subject, however, to the right of the libellants.
What salvage is to be allotted to us, the court will decide. Our case is certainly one of great merit: we were, for more than two months, exposed to the perils and hardships of a long and boisterous voyage ; and that, too, in a large ship, to the management of which, the small crew on board was by no means adequate. Less than half the amount of the property would not, we conceive, compensate us for the trouble and danger we have incurred.
xnazi	* Pinkney observed, that he had not considered this as a case
-* coming within the meaning of the non-intercourse act, and had, therefore, waived the discussion of that point: he still doubted whether there were sufficient grounds to support it. The law only prohibits importations from a foreign port or place. In cases of transshipment, it may perhaps be said, that the property transshipped is imported from a foreign place : but here was no transshipment, no change of vessel: here, the property is imported from the high seas, which can hardly be considered as coming within the description of a foreign port or place. He did not mean, he said, to enter into a formal argument. He would, however, observe, that in his opinion, the captors, in the present case, could not complete their right to the property in question, by means of a neutral master and crew, even if the British owner was divested of his right.
Push, Attorney-General, conceived that the high seas might be considered as a foreign place ; that the cargoes of whale-ships from the Pacific, such as oil, whalebone, blubber, &c., which originate from the sea, might be considered as within the meaning of the non-intercourse act. He suggested, that the word place, in the act, was probably used in contradistinction to port.
Marshall, Ch. J.—In the circuit court, the high seas were considered as common to all nations, and, of course, foreign to none.
Pinkney said, this was a case of very considerable difficulty. How is the property to be disposed of? It cannot be decreed to the United States, for it is not a case under the non-intercourse act, nor was the seizure jure belli: a prize court had no jurisdiction : for the seizure was in time of peace, for a supposed violation of the non-intercourse law, and after the property was landed: it cannot be decreed wholly to the libellants, because it must be considered as a case of salvage. Nor can it be restored to the original owner, because he is an alien enemy.
Monday, March 7th, 1814. (Absent, Todd, J. ; Story, J., did not sit in this cause, some distant relative of his having an interest in it.)
*99ftl	* Johnson, J., after stating the facts of the case, as before men-
-* tioned, delivered the opinion of the court, as follows:—The very peculiar circumstances of this case require the application of a variety of principles ; and the court has not been aided in its inquiries, by that elaborate discussion which such novel cases generally elicit. But they are
136
1814]	OF THE UNITED STATES.	226
The Adventure.
relieved by the reflection, that the principles to which they must resort in forming their judgment are well established, and lead satisfactorily to a conclusion. The most natural mode of acquiring a definite idea of the rights of the libellants in the subject-matter, will be, to follow it through the successive changes of circumstances by which the nature and extent of the rights of the parties were affected. The capture, the donation, the arrival in the United States, and the state of war.
As between the belligerents, the capture, undoubtedly, produces a complete divesture of property. Nothing remains to the original proprietor but a mere scintilla juris, the spes recuperandi. The modern and enlightened practice of nations has subjected all such captures to the scrutiny of judicial tribunals, as the only practical means of furnishing documentary evidence to accompany ships that have been captured, for the purpose of proving that the seizure was the act of sovereign authority, and not mere individual outrage. In the case of a purchase made by a neutral, Great Britain demands the production of such documentary evidence, issuing from a court of competent authority, or will dispossess the purchaser of a ship, originally British. The Fladoyen, 1 Rob. 114, 135. Upon the donation, therefore, whatever right might, in the abstract, have existed in the captor, the donee could acquire no more than what was consistent with his neutral character to take. He could be in no better situation than a prize-master navigating the prize, in pursuance of orders from his commander. The vessel remained liable to British Rapture, on the whole voyage. And on her arrival in a neutral territory, the donee sunk into a mere bailee for the British claimant, with those rights ?ver the *thing in possession, which the civil law gave for care r*99)7 and labor bestowed upon it.
The question then occurs, is this a case of salvage ?, On the negative of the proposition, it is contended, that it is a case of forfeiture, and therefore, not a case of salvage, as against the United States ; that it was an unneutral act, to assist the enemy in bringing the vessel infra præsidia, or into any situation where the rights of re-capture would cease, and therefore, not a case of salvage as against the British claimant. But the court entertain an opinion unfavorable to both these objections. •
This could never have been a case within the view of the legislature, when passing the non-importation act. The ship was the plank on which the shipwrecked mariner reached the shore ; and although it may be urged, that bringing 'in the cargo was not necessarily connected with their own return to their country, yet, upon reflection, it will be found, that this also can be excused, upon very fair principles. It was their duty to adhere strictly to their neutral character ; but to have cast into the sea the cargo, the property of a belligerent, would have been to do him an injury, by taking away that chance of recovery subject to which they took it into ther possession. Besides, bringing it into the United States, did not necessarily pre-suppose a violation of the non-importation laws. If it came within the description of property cast casually on our shores, as we are of opinion it did, legal provision exists for disposing of it in such a manner as would comport with the policy of our laws. At last, they could but deliver it up to the hands of the government, to be re-shipped by the British claimant, or otherwise appropriated under the sanction of judicial process. And such was the course that they pursued. Far from attempting any violation of the laws of the 137
227
SUPREME COURT
[Feb’y
The Adventure.
country, upon their arrival here, they deliver it up to the custody of the laws, and leave it to be disposed of under judicial sanction. The case has no one feature of an illegal importation, and cannot possibly have imputed to it the violation of law.
iJe< , *As to the question arising on the interest of the British claimant,
-* it would, at this time, be a sufficient answer, that they who have no rights in this court, cannot urge a violation of their rights, against the claim of the libellants. But there is still a much more satisfactory answer : to have attempted to carry the vessel “ infra prazsidia ” of the enemy, would, unless it could have been excused on the ground of necessity, have been an unneutral act. But when every exertion is made to bring it to a place of safety, in which the original right of the captured would revive, and might be asserted, instead of aiding his enemy, it is doing an act exclusively resulting to the benefit of the English claimant.
It being determined to be a case of salvage, the next question is, as to the amount to be allowed. On this subject, there is no precise rule ; nor is it, in its nature, reducible to rule. For it must, in every case, depend upon peculiar circumstances, such as peril incurred, labor sustained, value decreed, &c.; all of which must be estimated and weighed by the court that awards the salvage. So far as our inquiries extend, when a proportion of the thing saved has been awarded, a half has been the maximum, and an eighth the minimum; below that, it is usual to adjudge a compensation in numero. In some cases, indeed, more than a half may have been awarded ;,but they will be found to be cases of very extraordinary merit, or on articles of very small amount. In the present case, the account sales of the cargo was near $16,000 ; and we are of opinion, that the one-half of that sum will be an adequate compensation.
The next question arises on the application of the residue. On this point, the court is led to a conclusion, by the following considerations : At the arrival of the vessel in. the United States, the original British owner would, unquestionably, have been entitled to the balance. The state of war, however, at present, prevents his interposing a claim in the courts of this country. But as this property was found within the United States, at the declaration of war, it must stand on the same footing with other British property similarly situated. Although property of that description is liable to be dis-*	.. posed of by the legislative *power of the country, yet, until some act
J is passed upon the subject, it is still under the protection of the law, and may be claimed, after the termination of war, if not previously confiscated. We will, therefore, make such order respecting it, as will preserve it, subject to the will of the court, to be disposed of as future circumstances shall render proper.
As to the mode of distributing the amount of the salvage, the court have concluded to adopt an arbitrary distribution ; because there exists no positive rule on that subject. They would have adopted the rules of the prize act relative to cases of salvage, had the circumstances of the case admitted of its application.
This court orders and decrees, that the decree of the circuit court of Virginia, in this case, be reversed ; that the costs and charges be paid out of the proceeds of the sale ; that the one-half of the balance be adjudged to the libellants, to be divided into thirteen and a half parts, three of which
138
1814]
OF THE UNITED STATES.
229
Green v. Liter.
shall be paid to the master, two to the supercargo, two to the chief mate, one and a half to the second mate, and one to each of the seamen. And that the balance be deposited in the bank of Virginia, to remain subject to the future order of the circuit court.
Judgment reversed.
John Green v. John Liter and others.
Real actions.— Writ of right.
The circuit courts of the United States have jurisdiction in writs of right, where the property demanded exceeds $500 in value ;* and if, upon the trial, the demandant recover less, he is not to be allowed his costs ; but, at the discrection of the court, may be adjudged to pay costs.1 2 *
At common law, a writ of right will not lie, except against the tenant of- the freehold demanded. If there be several tenants, claiming several parcels of land, by distinct titles, they cannot lawfully be joined in one writ ; and if they are, they may plead in abatement of the writ.8
If the demandant demands against any tenant more land than he holds, he may plead non-tenure as to the parcel not holden; but the writ will abate only as to the parcel whereof non-tenure is pleaded, and admitted or proved.4 *
Under the act of Kentucky, to amend process in chancery and common law, the party may recover, although he prove only part of the claim in his declaration; but it does not enable him to join parties in an action, who could not be joined at the common law.
The act of Virginia, of 1786, reforming the method of proceeding in writs of right, did not vary the rights, or legal predicament, of the parties, as they existed at the common law. It did not, therefore, change the nature and effect of the pleadings; and notwithstanding that act, the tenant may still have the benefit of the ordinary pleas in abatement. The clause of the act which provides, that the tenant, at the trial, may, on the general issue, give in evidence any matter which might have been specially pleaded, is confined to matters in bar.
Under the act of Virginia, of 1786, the tenant may, at his election, plead any special matter in bar, in a writ of right, or give it in evidence on the mise joined. The act is nit compulsive, but cumulative.
The act of Virginia, of 1786, did not change the nature of the inquiry, as to the titles of the parties to a writ of right.
In order to support a writ of right, it is not necessary to prove an actual entry under title, nor actual taking of esplees : a constructive seisin in deed is sufficient.
Under the land law of Virginia, the whole legal estate and seisin of the commonwealth pass to the patentee, upon the issuing of his patent, in as full and beneficial a manner (subject only to the rights of the commonwealth) as the commonwealth itself held them.
A conveyance of wild and vacant lands, give a constructive seisin thereof, in deed, to the grantee and attaches to him all the legal remedies incident.to the estate: a fortiori, this principle applies to a patent.6
In Kentucky, a patent is the completion of the legal title; and it is the legal title only that can come in controversy in a writ of right.
A better subsisting adverse title in a third person, is no defence in a writ of ■right.®
If tenants claiming different parcels of land, by distinct titles, omit to plead that matter in abatement, and join the mise, it is an admission, that they are joint-tenants of the whole; and the verdict, if for the demandant, for any parcel of the land, may be general, that he hath more mere right to hold the same than the tenants; and if, of any parcel, for the tenants, that they have more mere right to hold the same than the demandant.7
If a man enter into lands, having title, his seisin is not bounded by his actual occupancy, but is held to be co-extensive with his title: but if a man enter, without title, his seisin is confined to his possession by metes and bounds.8
1 See Homer v. Brown, 16 How. 354.
2 s. p. Kneass v. Schuylkill Bank, 4 W. C. C.
106.
8 Liter v. Green, 2 Wheat. 306.
4 See Fiedler v. Carpenter, 2 W. & M. 211.
6 Peyton v. Stith, 5 Pet. 486; United States
v. Arredondo, 6 Id. 601.
6	Green v. Watkins, 7 Wheat. 27. And see Ingles v. Sailor’s Sung Harbor, 3 Pet. 133.
7	See Liter v. Green, 2 Wheat. 306.
8	Peyton v. Stith, 5 Pet. 485; Clark v. Courtney, 7 Id. 320; Ellicott v. Pearl, 10 Id. 412;
139
229
SUPREME COURT
Green v. Liter.
JFeb’y
Under a conveyance, taking effect under the statute of uses, the bargainee has a complete seisin in deed, without actual entry or livery of seisin.1
An entry into a parcel, which is vacant, will not give seisin of a parcel which is in an adverse seisin; but an entry into the last parcel, in the name of the whole, will inure as an entry into the vacant parcel?
This was a writ of right, brought by Green, the demandant, against the tenants, to recover seisin of a large tract of land, lying in Kentucky, and set forth in the count. The writ of right was sued out under the act of the Virginia assembly, entitled “ an act for reforming the method of proceeding in writs of right.”
At the trial in the circuit court for the Kentucky district, several questions arose upon which the court was divided ; whereupon, those questions were certified for the opinion of the supreme court. ■ They are as follows : *2101 *lst. Has the circuit court of the United States jurisdiction in a
J writ of right, where the land claimed by the demandant is above the value of $500, but the tenement held by the tenant is of less value than $500?
2d. Can the demandant join in the writ and count several tenants, claiming under several distinct, separate and independent original titles, all of which interfere with the land of the demandant ? If he can, must he demand of them the tenements they severally hold, or may he demand a tenement to the extent of his own title? If it comprises a'part, not claimed or held by any of the said tenants, may he demand, in his count against the several tenants, his own tenement, or must he demand of each tenant the tenement he severally holds ?
3d. Can the tenant, under the act of the Virginia assembly for reforming the method of proceeding in writs of right, plead in abatement, either the plea of non-tenure, joint-tenancy, sole tenancy, several tenancy, or never tenant of the freehold, or any of them, or other pleas in abatement necessary to his case ; or is he compellable to join in the mise, in the form prescribed by the said act ? If he can, when, or at what stage of the proceedings ? If he cannot, may he give it in evidence, on the mise joined ?
, 4th. May the tenant, under the said act, plead specially any matter of bar, or must he join the mise, without other plea, in the form prescribed by the said act ?
5th. Can a demandant, who has regularly obtained a patent from the tand-office of the state of Virginia, for the land in contest, under the act of the Virginia legislature, passed in the year 1779, commonly styled the landlaw, maintain a writ of right, under such patent, against a person claiming and holding possession under a younger patent from the said state, without having first taken the actual possession of the land, under his patent, held by the tenant ? If he can maintain a writ of right, without such proof, in the general, can he do it, where his right of entry is barred by an actual adverse possession of twenty years ?
*2311	e^est patent, obtained as aforesaid, for *the land in
J controversy, sufficient proof of the best mere right; or can the demadant be put on the proof, that, in the incipiency, and in the different
s. c. 1 McLean 206; Prescott v. Nevers, 4 Mason 326 ; Sparkman v. Pistor, 1 Paine 458 ; Fraser v. Hunter, 5 Cr. C. C. 470.
140
1	Barr v. Galloway, 1 McLean 476.
2	See Hunt v. Wickliffe, 2 Pet. 201.
1814]	OF THE UNITED STATES.	231
t Green v. Liter.
steps necessary to complete his title, he has complied with the requisites prescribed by the acts, the one entitled “ an act for adjusting and settling the titles of claimants to unpatented lands under the present and former government, previous to the establishment of the commonwealth landoffice,” an'd the other, “ an act for establishing a land-office and ascertaining the terms and manner of granting waste and unappropriate lands,” and the subsequent laws of Virginia on the same subject, in force at the time of the erection of the district of Kentucky into a separate state?
7th. If the demandant is not compelled to show anything beyond his patent, can the tenant holding the younger patent be permitted to impeach the demandant’s patent, to show the incipiency and completion of his own title, and the relative merits of his own and the demandant’s title ?
8th. Can the defendant defend himself, by showing an older and bettei’ existing title than the demandant’s, in a third person ?
9th. Where several tenants, claiming in severalty, are joined in a writ of right, should the finding of the jury be several, of the mere right between the demandant and each tenant, or may it be a general finding that the demandant hath the most mere right ?
10th. The commonwealth having first made and granted a patent to the demandant, and afterwards, by her patent, granted a part of the same land to the defendants, who entered and obtained the first possession, the demand ant afterwards entered and took possession, under his first grant, of that part of his land not within the patent of the first grantee : who has the best mere right to the land, where the patents conflict, outside of the actual chose of the last grantee ?
11th. Will an entry upon part, and taking the esplees, under the elder grant from the commonwealth, and making claim to the whole land included within the bounds of the elder grant, authorise the demandant to maintain *his writ of right against the tenants holding the previous possession, under a younger patent interfering with the elder grant ?	L
Wickliffe, for the demandant.—The court below being divided in opinion upon the several questions already stated, they have been adjourned to this court. The questions themselves sufficiently show the controversy. And the several points will be examined as they present themselves on the record.
1.	With regard to the first, we contend, that the circuit court has jurisdiction in the case therein stated ; and that the defendant’s only remedy, in such case, under the act of congress, is, that he shall be excused from paying costs, and that he may, at the discretion of the court, be allowed his costs. In support of this point, we rely on the judicial act of 1789, §§ 11, 20. (1 U. S. Stat. 78, 83.)
2.	Upon the second question, we contend, in behalf of the demandant, that under the act of assembly of Virginia (Rev. Co. P. P. 34), if his tenement is an entire one, and interfered with by divers tenants, he can only demand his tenement as it is, and cannot know how the adverse claimants bound or abut their claims or possession ; and that as all claim and obstruct him in the use and possession, he has a right to sue all. We contend further, that although the demandant claim more than the tenants, or either of them, hold, still he may recover as much as is withheld from him by the tenant or tenants. To support this possition, we rely upon the act of assembly
141
232	SUPREME COURT	[Feb’y
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of Virginia of 1792, ch. 125, which is in force in Kentucky, and is the same in substance with the act of 25 Edw. III. c. 16, which enacts, “that by the exception of non-tenure of parcel, no writ shall be abated but for quantity of the non-tenure which is alleged and the act of assembly of Kentucky, entitled “ an act to amend proceedings in chancery and common law the latter of which acts expressly provides, that if the plaintiff at law shall prove part of his demand or claim set up in his declaration, he shall not be nonsuited, but shall have judgment for what he proves. See also, Booth on Real Actions, p. 2.
*	,	*3. On the third question, we insist, that under a sound construc-
•	* tion of the act of assembly of Virginia of 1786 (Revised Code, vol. 1, p. 33, c. 27), no matter in abatement which does not affect the right, can be pleaded. But if it can be pleaded, yet, under the acts of assembly of Kentucky, and the rules of the circuit court of the district of Kentucky, it ought to be pleaded, during the appearance term, and be supported by oath. It is further insisted, that only such matters as assume the character of abatement at common law, and which affect the mere right, such as nontenure, can be given in evidence on thè mise joined. A contrary construction of the act would lead to the worst of consequences. If, upon the mise joined, all matter in abatement might be given in evidence, a man might lose his valuable inheritence, by the defendant proving on the trial, that he claimed and held as joint-tenant, and not as sole tenant. It would also involve the monstrous absurdity, of making the jury the sole and exclusive judges of the demandant’s count and pleading.
4.	The fourth proposition seems to be abstract and indefinite. If the matter in bar affects the mere right, and goes to show substantially that the demandant has no claim in fee-simple, it is submitted to the court to say, whether, under a just construction of the act, he can plead it. But as the act allows him to give such bar in evidence, on the general issue, it is within the sound discretion of the inferior court, to permit the defendant to plead the special matter, or give it in evidence on the general issue ; and that must depend upon the time when the application is made. On this point, the case of Resler n. tiheehee, 1 Cranch 110, and the case of Fox v. White, in the court />f appeals in Kentucky, are relied upon. It is further submitted, whether the mere etiquette of pleading, and the time when that pleading shall be filed, is not a matter of practice only, and proper to be left to the circuit courts to settle, under their own rules, or the statutes and practice in Kentucky.
5.	The fifth question seems to be a more important one ; and it would have been, perhaps, more regular to have placed that before the other questions, inasmuch as a decision upon that, affirmatively, would preclude the *2341 necessity deciding several of the others. *Upon this question, we
J contend, that the demandant can, upon his patent, maintain his writ of right ; and that actual possession is not necessary. To maintain this point, it is not at all material to prove, that by the king’s letters-patent granting titles to land in England, a writ of right could be maintained. It is believed, that no case has occurred where that point has been directly decided. But titles in England are conditional, not absolute. Since the time of William the conqueror, all grants of land have been made on feudal principles ; and a patent in England is not of itself a right, but an author-
142
1814]	OF THE UNITED STATES.	234
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ity to the grantee to take a right; that right rests upon conditions ; and one of those conditions is entering and taking possession of the land. In the grant, there are two parties supposed, the king and grantee; and the grantee becomes bound to the king, when he accepts the estate, and not until then ; the ultimate property remains with the king ; and upon the tenant’s entering he becomes seised of the use only ; and hence exists the reason, in the English books, of requiring the demandant, in the most solemn trial of a right to real estate, to show and prove the highest title the subject ever had, the dominium utile, or usufruct of the property ; for if neithei- he nor his ancestor had entered and been seised of the use (the dominium directum remaining in the king), they never had a fee-simple estate ; the feudal grant not being an estate in fee, but a right to enter and take one ; and if that right was never exercised, the estate was never taken. See 2 Bl. Com. 46, 104, 105, 107, 108. It appears also further, from Booth, and Fitz. Nat. Brev. tit. Writ of Right, F, that the demandant had not only to set out when he was seised, but by what service he held the land.
It is important to state the kind of title made by letters-patent such as those under which the demandant claims. In 1777, the legislature of Virginia abolished all servile and feudal tenures ; and in 1779, passed her land law, under which we derive title. In one section of that act, the form of an allodial grant is given ; and, by way of closing every doubt as to the title, the register was directed to indorse that the patentee had title. Having provided, in that section, for the complete investment of an absolute and unconditional title under that act, and actuated by a laudable desire to place all *her citizens upon the same tenure, in the 19th section of the same act, she declares, “ that all reservations and conditions in the patents L or grants of land from the crown of England or of Great Britain, under the former government, are hereby declared to be null and void; and that all lands thereby respectively granted shall be held in absolute and unconditional property, to all intents and purposes whatsover, in the same manner with lands hereafter to be granted by the commonwealth, by virtue of this act.” And by a subsequent section of the same act, all laws requiring the seating or possession of land, to vest title, are expressly repealed. It will be perceived, that the legislature not only gave the form of a patent, such as never had been issued before, in that state, but provided, that an indorsement should appear on the back of the letters-patent, that the grantee had title, no such indorsement ever having been made or allowed during the regal government. But lest the titles might, in some manner, be tinctured with the learning of the feudal law, they explicitly declare that the estate shall be held in absolute and unconditional property. It might here be asked, can any man say that the patent of the commonwealth, issued in strict pursuance of this act, does not convey a fee-simple estate, without any condition being performed by the patentee ? To us, it seems, that this is a point too clear for doubt.
The attention of the court is next called to the act of 1786. That act, in its title and context, professes to be an act to reform the method of proceeding in writs of right ; and expressly provides, that it shall be lawful for a person claiming a fee-simple title to sue forth the praecipe quod reddat, &c. This act gives the writ. If the demandant has a fee-simple estate (and the only question which can be involved is, has the demandant, by these let-
143
235	SUPREME COURT	[Feb’y
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ters-patent, a fee-simple estate), a further argument is drawn from the fact of passing the act itself. The necessity of this reform had become obvious to the legislature and the people of Virginia, from the great and radical change of the land-titles created by the act of 1779. That act had repealed all laws which required ciaimers of land to settle them ; had repealed and abolished every service and tenure by which lands in that state had been theretofore held. Of course, the form of the count at common law was totally defective and improper ; *because that contained not only the ¿ J charge of actual seisin, but the time when, and by what kind of service the lands were held». The common-law titles having ceased, the remedy ceased also ; it, then, well became the legislature to give a statutory remedy suited to the statutory and then existing state of titles ; and thus you find a form of praecipe and count given, precisely correspondent with the title. The act of 1779 abolished all the feudal tenures, and dispensed with actual possession ; and the old allegations of possession and the kind of tenure are omitted. This omission means something ; and why did it take place, if not for the causes now assigned ? See, on the foregoing points, Cruise on Real Estates 12 ; Co. Litt. 48 ; Ch. Rev. 61. The form of the writ and count is very obviously taken from the British forms ; and is not only the act of a legislature famed for its wisdom and learning, but report makes this form the peculiar work of a committee of the first lawyers then of the Virginia bar. To ascribe such unmeaning omissions to such men and to such a body, is wholly inadmissible.
But surely, on common-law principles, it cannot be fairly contended, that the demandant shall prove actual possession. The statute has given him his count or declaration ; that count will, it is believed, be sufficient for him, after verdict; and if a man proves everything he has alleged upon a good declaration, we understand the common law to be, that he shall have a verdict. If you require of the demandant to prove more than his count contains, where will you stop? If'you say, that after he prov’es and exhibits a fee-simple title, he shall also prove possession, why not say that he must prove by whac tenure he holds, and whatever else he was bound to prove at common-law ; and which were equally indispensable to be proved before this statute ? The case of Clay v. White, 1 Munf. 162, will be relied on, to prove that the patentee is, to every legal purpose, possessed of land, in Virginia, by his letters-patent. Upon this point, the attention of the court is further called to the state of the country, at the date of the Virginia land law. It was in the midst of a war with Great Britain ; when sound policy required that many of the grantees, who were engaged in the war (the offi-cers *and soldiers), should remain in it, during its continuance ; and J that those not engaged should, to a certain extent, be drawn into its armies. In fact, this very land-office was opened with the two-fold view of raising men and money to carry on the war. It is, therefore, asked, if the objects of the legislature would not have been defeated, if the very bounty offered for the public service, and which might be the price of the blood of the father to the children, should depend upon seating and possessing the land ? For, if the doctrine obtain, that actual possession is necessary to a perfect title, or to give a fee-simple estate, it is incontrovertible (by the rules of the common law), that the death of the grantee, before entry, prevents the estate from descending ; that the grantee cannot sell nor devise a
144
1814]	OF THE UNITED STATES.	237
Green v. Liter.
mere right of entry ; and that, by the bare attempt to do the one or the other, he works a forfeiture. See Co. Litt. 214, 266, and Noy’s Maxims, 84. It is believed, that one-third of the best lands in Kentucky are held by devise, purchase or descent, without the original grantee ever having been possessed. With what astonishment will the Virginian or Kentuckian learn, for the first time, the monstrous doctrine that destroys every estate of the kind. Again, with the exception of four small forts or stations, the whole territory which now forms the state of Kentucky was, at the date of ihe law, a wilderness, in the possession and under the power of the Indians. In fact, a considerable part granted out by the state, below the Tennessee, is yet held, and may be held for a century, by the Indians. And can it be supposed, that Virginia could have intended, when she invited the soldier and the capitalist to embark their fortunes in the war, and offered as a i eward these lands, to have imposed the necessity of actual settlement, and taking the esplees, as a pre-requisite to title ? What are the esplees of a wilderness, under the dominion of the tomahawk and the scalping knife ? Are they the game or the wild acorns ? If we be correct in supposing that the commonwealth vests in the demandant, in this case, a fee-simple estate, and legally possesses him of that estate, it follows, that nothing less than an. adverse possession of thirty years can bar him ; and that twenty years is not a sufficient bar. In support of the foregoing observations, see Ch. Rev., p. 97 ; Ibid. p. 98, § 6 ; 1 Rev. Code of Virg. Laws, p. 33. Noy’s Maxims 160, *Co. Litt. 48, note ; Booth 112 ; Ibid. 98 ; Bradford v. Patterson, r*23« Hardin 162 ; Brown v. Quarles, Sneed 237 ; Co. Litt. 57 ; Fitz. N. *■ B. 506, note ; Rev. Code, ch. 114.
6.	On the sixth question proposed, we contend, that the first patent conveys the legal estate in fee ; that the incipiency of title was a matter-between the commonwealth and the patentee ; and when settled with the commonwealth, and the title made perfect, that it does not lie in contest,, between the demandant and defendant. We contend also, that in a trial at law, of a mere legal right, the defendant cannot set up an equity against the-elder grant. This point was settled by the court of appeals of Kentucky, in. the old case of Brown v. Quarles, and has ever since been considered the law of that state.
8.	On the eighth question, we contend, that the mise is joined upon the mere right between the demandant and defendant ; and that the jury is to inquire whether the demandant hath more right, &c., or the defendant, &c.,. and that it will be absurd to inquire, whether the demandant or some one else hath the most mere right.
9.	On the ninth, it may be observed, that it must depend upon the manner in which the mise is joined. If the tenants jointly and severally join the mise, upon the whole land claimed by the demandant in his count, then a general finding will be proper. But if they severally plead as- to- part, and disclaim or plead non-tenure as to the rest, then the finding should be several*, and respond to each issue.
10.	On the tenth, we contend, that an entry into part, in the name of the whole, and claiming the whole, will, on common-law authority, sustain the writ and count, as to all claiming under a younger and inferior right, that have not had thirty years’ adverse possession ; and of course, that the land
8 Cranch—10	145
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in the demandant’s patent, and outside of the close of the defendant, belongs to the demandant.
11.	The observations upon the tenth question will apply to this also.
*9	* Hughes, control.—The fifth question being the most important,
J and that to which the demandant’s counsel has principally directed his attention in the course of his argument, I shall confine my observations also chiefly to that point. The Virginia act of assembly of 19th December 1792, which declares that “ actual possession need not be proved to maintain a writ of right,” was passed after the separation of Kentucky from Virginia; and consequently, is notin force in the former state. At common law, a writ of right cannot be maintained, without proof of seisin in the demandant, and actual taking of esplees, within the time of limitation ; which, in England, is thirty years on a man’s own seisin, and fifty, on the seisin of his ancestors ; and such was the law of Virginia until the year 1786, when the act for reforming the method of proceeding in writs of right, was passed. But this act merely changed the mode of trial, not the substance of proof. It did not dispense with proof of the demandant’s seisin ; and consequently, the law on that subject remains fhe same as before the passage of the act of 1786. Vide Booth 85, 111, 112 ; Co. Litt. 281, 293, 294 ; 2 Saund. 45, 46 ; Bac. Abr. tit. Limitation of Actions, B ; Bevil’s Case, 4 <Co. 8 ; Old Laws of Virginia 147.
From the case of Tisson v. Clarke, 3 Wils. 419, it appears, that if the tenant did not pay his demi-mark, and deny the seisin of the demandant, such seisin was taken for confessed. Hence, the defendant was put to prove his title, contrary to the general rule. Vide the case of Tisson v. Clarke, 3 Wils. 419 ; Ibid. 541 ; Co. Lit. § 514 ; Booth 113. But the legislature of Virginia, by omitting to require the allegation of seisin, made it ■necessary that the demandant should prove it. If it. bad been alleged, and ■not denied, such proof, on the part of the demandant, would not have been •necessary.
Although, according to the decision of the court of appeals of Kentucky •in the case of Innis n. Crawford (2 Bibb 412), the patent conveys a feesimple estate, yet the patentee must so use it as not to lose his estate, *3 *and in such a manner as to prevent the operation of the statute of J limitations. A patentee may lose his right, by not entering in due time ; and, in such case, having nothing superior to a right of entry, he cannot maintain a writ of right. At the time of the separation of Kentucky from Virginia, the statute of limitations of Virginia was, verbatim, the same as the statute of 32 Hen. VIII., c. 2, on which it has been decided, that seisin was necessary within fifty years. Vide the MS. report of the case of Spriggs v. Griffith, decided in Kentucky ; also the case of Speed v. Buford (3 Bibb 57), decided in the court of appeals of the same state, in May 1813.
But admit, that a patent is equivalent to livery in law ; we contend, that livery in fact is necessary; and so must the case of TFTizie v. Clay, in 1 Munf. 162, be understood. Co. Litt. 240 b ; Ibid. Ill ; Shep. Touch. 209, 223.
The reason of the law requiring proof of actual possession, is obvious : such proof was required, in order to secure the' peaceable occupany of the land to the rightful proprietor. Investiture and seisin were invented for 146
1814]	’ OF THE UNITED STATES.	240
Green v. Liter.
the purpose of putting an end to litigation. They were notorious acts in the country, performed in the presence of the vicinage ; and where there had been such actual seisin and investiture, the law, after the right of entry was gone, gave the demandant the writ of right, to revive his former possession. 2 Bl. Com. 311, 312 ; Shep. Touch. 209. It is true, that, according to the old law, a charter of feoffment, without actual livery, only gave an estate at will; and the statute of uses transfers the possession in law to the use ; but no change was made thereby in the law respecting writs of right, which requires proof of actual possession.
With regard to the other questions adjourned, the counsel for the tenants contended, as to the 1st and 2d points, that the demandant could not join, in the writ and count, several tenants, claiming under several distinct, separate and independent original titles ; and that, as they could not be joined, the circuit court had no jurisdiction ; inasmuch *as no one of the tenements in question was of the value of $500.	•-
As to the third point, that non-tenure, no seisin, &c., might be pleaded under the act of Virginia of 1786. The 4th point, he submitted. On the 6th and 7th, he contended, that the patent was not conclusive evidence in a writ of right. On the 8th, he supported the affirmative of the question. The 9th he said respected matter of form merely. As to the 10th, he insisted, that when a man takes possession, he takes possession to the extent of his claim. The 11th, he said, was answered by the observations on the 1st point.
Wickliffe, in reply, contended, that the Kentucky cases cited by the tenant’s counsel, not being final and absolute, were not authority ; that the court of appeals of Kentucky was, in fact, waiting for the decision of this court, in these cases. But admitting them to be authority, still there was error in the finding of the jury ; they had found a special verdict, which, by the common law, they could not do ; they ought to have decided the mere right, and nothing more.
In the case of a grant from the crown, of the same land, to two different persons, if the last grantee enter, the former may maintain trespass. In the case of Innis v. Crawford, the court, in effect, said, that the patent gave seisin ; because they dated the disseisin by the tenant, from the date of his entry ; but if the demandant was not seised, he could not have been disseised.
*The court of appeals of Virginia, at different times, have decided .. differently on the same law ; but the courts of Kentucky have always *-decided, that when the reason of the English law ceased, in consequence of the different circumstances of the country, the law itself ceased.
Friday, March 11th, 1814. (Present, all the judges.) Story, J., delivered the opinion of the court, as follows :—
This is a writ of right, brought by the demandant against the tenants, to recover seisin of a large tract of land set forth in the count. At the trial in the circuit court for Kentucky district, several questions arose upon which the court were divided ; and these questions are now certified for the opinion of this court.
As to the first question, we are satisfied, that the circuit court had jurisdiction of the cause. Taking the 11th and 20th sections of the judiciary acl
147
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of 1789, ch. 20, in connection, it is clear, that the jurisdiction attaches where the property demanded exceeds $500 in value ; and if, upon the trial, the demandant recover less, he is not allowed his costs ; but, at the discretion of the court, may be adjudged to pay costs.
As to the second question, we are of opinion, that, at common law, a writ of right will not lie, except against the tenant of the freehold demanded. If there are several tenants, claiming several parcels of land, by distinct titles, they cannot lawfully be joined in one writ; and if they are, they may plead in abatement of the writ. If the demandant demand against any tenant more land than he holds, he may plead non-tenure as to the parcel not holden ; and this plea, by the ancient common law, would have abated the whole writ. But the statute 25 Edw. III., St. 5, c. 16, which may be considered as a part of our common law, having been in force at the emigration of our ancestors, cured the defect, and declared, that the writ should abate only as to the parcel whereof non-tenure was pleaded, and admitted or proved. In fact, the act of Virginia of 1792, ch. 125, which is in force in Kentucky, enacts substantially the same provision as the statute of Edward. * . -| *But it is supposed, in argument, that the act of Kentucky, to
J amend proceedings in chancery and common law, which provides that if the plaintiff at law shall prove part of his demand or claim set up in his declaration, he shall not be nonsuited, but shall have judgment for what he proves, entitles the demandant in this case to join parties who hold in severalty by distinct titles. To this doctrine the court cannot accede. At common law, in many instances, if the party demanded in his writ more than he proved was his right, he lost his action by the falsity of his writ. It was to cure this ancient evil, that the act of Kentucky was made. It enables the party to recover, although he should prove only part of the claim in his declaration. But it does not intend to enable him to join parties in an action, who could not be joined at the common law. It could no more entitle a demandant in a real action to recover against several tenants, claiming by distinct and separate titles, than it could entitle a plaintiff to maintain a joint action of assumpsit, where the contracts were several and independent. Infinite inconvenience and mischief would result from such a construction ; and we should not incline to adopt it, unless it were unavoidable.
As to the third question. It is clear, at the common law, that nontenure, joint-tenure, sole tenure and several tenure, were good pleas in abatement to a writ of right. But they could only be pleaded in abatement ; for the tenant, by joining the mise, or pleading in bar, admitted himself tenant of the freehold. Such pleading in bar was an admission that he had a capacity to defend the suit; and he was estopped, by his own act, from denying it. The act of Virginia of 1786, ch. 27, reforming the proceedings on writs of right, was not intended to vary the rights or legal predicament of the parties. It did not, therefore, intend to change the nature and effect of the pleadings; and, notwithstanding that act, the tenant shall still have the full benefit of the ordinary pleas in abatement. It is true, that the act provides that the tenant, at the trial, may, on the general issue, give in evidence any matter which might have been specially pleaded. But this provision is manifestly confined to matters in bar. It would be *944.1 absurd, to suppose,, that the legislature meant to give to a mere *ex-
- ception in abatement the full effect of a perfect bar on the merits;
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1814]	OF THE UNITED STATES.	244
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which would he the case, if such an exception would authorize a verdict for the tenant on issue joined on the mere right. The time and manner of filing the pleadings must, of course, be left to the established practice and rules in the circuit court.
As to the fourth point, we are of opinion that, under the act of Virginia of 1786, the tenant may, at his election, plead any special matter in bar, in a writ of right, or give it in evidence on the mise joined. The act is not deemed compulsive but cumulative.
The fifth question is that which has been deemed most important ; and to this the counsel on each side have directed their efforts with great ability. It is clear, by the whole current of authority, that actual seisin, or seisin in deed, is, at the common law, necessary to maintain a writ of right. Nor is this peculiar to actions on the mere right. It equally applies to writs of entry ; and the language of the count, in both cases, is, that the demandant, or his ancestor, was, within the time of limitation, seised in his demesne as of fee, &c., taking the esplees, &c. It is highly probable, that the foundation of this rule was laid in the earliest rudiments of titles at the common law. It is well known, that in ancient times, no deed or charter was necessary to convey a fee-simple. The title, the full and perfect dominion, was conveyed by a mere livery of seisin, in the presence of the vicinage. It was the notoriety of this ceremony, performed in the presence of his peers, that gave the tenant his feudal investiture of the inheritance. Deeds and charters of feoffment were of a later age ; and Were held not to convey the estate itself, but only to evidence the nature of the conveyance. The solemn act of livery of seisin was absolutely necessary to produce a perfect title, or as Fleta calls it, juris et seisince conjunctio. But, whatever may be its origin, the rule as to the actual seisin has long since become an inflexible doctrine of the common law.
It has been argued, that the act of Virginia, of 1786, ch. 27, meant, in this respect, to change the doctrine of the common law, because that act has given the form of *the count in a writ of right, and omits any allegation of seisin and taking esplees. There is certainly some countenance in the act for the argument. But, on mature consideration, we are of opinion, that it cannot prevail.
The form of joining the mise in a writ of right, is also given in the same act; and that form includes the same inquiry, viz., “ which hath the greater right,” as the forms at common law. It would seem to follow, that the legislature did not mean to change the nature of the facts which were to be inquired into, but only to provide a more summary mode of proceeding. The clause in the same act allowing any special matter to be given in evidence on the mise joined, may also be called in aid of this construction. That clause certainly shows that it was not intended to relieve the demandant from the effect of any existing bar ; and want of seisin was, at the common law, a fatal bar. The statute of limitations of Virginia, of 19th December 1792, ch. 77, which, as to this point, is a revisal of the old statute, limits a writ of right upon ancestral seisin, to 50 years, and upon the demandant’s own seisin, to 30 years next before the teste of the writ. It is, therefore, incumbent on the demandant to prove a seisin within the time of limitation ; otherwise, he is without remedy ; and if so, it must be involved in the issue joined on the mere right. We are, therefore, of opinion, that
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the act of 1786 did not mean to change the nature of the inquiry as to the titles of the parties, but merely to remedy some of the inconveniences in the modes of proceeding.
If, then, an actual seisin, or seisin in deed, be necessary to be proved, it becomes material to enquire what constitutes such a seisin. It has been supposed, in argument, that an actual entry, under title, and perception of esplees, were necessary to be proved, in order to show an actual seisin. But this is far from being true, even at the common law. There- are cases in which there is a constructive seisin in deed, wrhich is sufficient for all the purposes of action in legal intendment. In Hargrave’s note, 3 Co. Litt. 29 a, it is said, that an entry is not always necessary to give a seisin in deed ; for if the land be in lease for years, curtesy may be, without entry, or even receipt of rent. The same is the doctrine as to seisin in a case of possessio fratris. So, if a grantee or heir of several parcels of land in the same county enter * *nt0 one ParC®l *in th® name of th® whole, where there is no conflict-
-* ing possession, the law adjudges him in the actual seisin of the whole. Litt. § 417, 418. In like manner, if a man have a title of entry into lands, but dare not enter for fear of bodily harm, and he approach as near the land as he dare, and claim the land as his own, he hath presently, by such claim, a possession and seisin in the lands, as well as if he had entered in deed. Litt. § 419. And livery within the view of the land will, under circumstances, give the feoffee a seisin in deed as effectually as an actual entry. There are, therefore, cases in which the law gives the party a constructive seisin in deed. They are founded upon this plain reason, tha; either the claim is made sufficiently notorious, by an actual entry into part, of which the vicinage can take notice, or the party has done all that, under the circumstances of the case, he was bound to do. L&x, non cogit seu ad vana aut impossibilia. The same is the result of conveyances deriving then-effect under the statute of uses ; for there, without actual entry or livery of seisin, the bargainee has a complete seisin in deed. Com. Dig. Uses, B. 1. I.; Cro. Eliz. 46 ; 1 Cruise Dig. 12 ; Shep. Touch. 223, &c.; Harg. Co. Lilt. 271, note. And the Kentucky act respecting conveyances, which is, in substance, like the statute of uses, gives to private deeds the same legal effect.
It has, however, been supposed, in argument, that not only an actual seisin or complete investiture of the land, but also a perception of the profits, or, as it is technically called, a taking of the esplees, is absolutely necessary to support a writ of right. It cannot, however, be admitted, that the taking of the esplees is a traversable averment in the count. It is but evidence of the seisin ; and the seisin in deed once established, either by a pedis possessio, or by construction of law, the taking of the esplees is a necessary inference of law. If, therefore, a seisin be established, although the lands be leased for a term of years, and thereby the profits belong to the tenant, still the legal intendment is, that the esplees follow the seisin. And so it would be, although a mere trespasser, without claiming title, should actually take the profits, during the time of the seisin alleged and proved. And, indeed, of certain real property, as a barren rock, a complete seisin may exist, without the existence of esplees.
*	.. *The result of this reasoning is, that wherever there exists the
24union of title and seisin in deed, either by actual entry and livery of seisin, or by intendment of law, as by conveyances under the statute of
150
1814]	OF THE UNITED STATES.	247
Green v. Liter.
uses, or in the other instances which have been Before stated, there the esplees are knit to the title, so as to enable the party to maintain a writ of right. And it will be found extremely difficult to maintain, that a deed, which, by the lex loci, conveys a perfect title to waste and vacant lands, without further ceremony, will not yet enable the grantee to support that itle, by giving him the highest remedy applicable to it, without an actual entry.
Let us now consider how far a perfect title to waste and vacant lands can be considered as having passed by a patent, under the land law of Virginia of 1779, ch. 13. It is argued, that such a patent conveys only a right or title of entry, which, until consummated by actual possession, gives the patentee no actual investiture or seisin of the land : and it is likened to the case of a patent from the crown. Some countenance is lent by authority to this position, so far as respects patents from the crown ; but a careful examination will be found by no means to establish its correctness. No livery of seisin is necessary to perfect a title by letters-patent.1 The grantee, in such case, takes by matter of record; and the law deems the grant of record of equal notoriety with an actual tradition of the land in the view of the vicinage. The contrary is the fact, as to feoffments. The deed is inoperative, without livery of seisin. This difference alone would seem to carry a pretty strong implication that actual seisin passsed by operation of law, on a patent from the crown ; for it is the union of a right and seisin that constitutes a perfect title ; and when once the law has declared a title perfect, it must include everything necessary to produce that effect. Accordingly, we find it expressly held in Barwick's Case, 5 Co. 94, that letters-patent under the great seal do amount to a livery in law. What is a livery in law, but such an act as, in legal contemplation, amounts to a delivery of seisin? If, for instance, a feoffment include divers parcels of land in the same county, livery of seisin of one parcel, in the name of the whole, is livery of all, not in an adverse seisin. This, therefore, as to all the parcels except that whereof livery is actually made, is but a livery *in law ;
and yet to all intents and purposes, it is as effectual as livery in deed. L And it was upon the footing of this doctrine that, in Barwick's Case, the court held, that the conveyance of a freehold by letters-patent, to commence infuturo, was void, as much as if the conveyance had been by feoffment; because in neither case could there be a present livery of the future freehold estate. The livery must operate at the time when it is made, or not at all. It is not, therefore, admitted by this court, that letters-patent of the crown do not convey a perfect title, where there is no interfering possession.
But even admitting it were otherwise, still, we think, a patent under the land law of Virginia must be considered as a statute grant, which is to have all the legal effects attached to it, which the legislature intended. It cannot be doubted, that the legislature were competent to give their patentees a perfect title and possession, without actual entry. Have they so done? We think, that it is impossible, looking to the language of their acts, or the state of the country, to doubt, that the whole legal estate and seisin of the commonwealth in the lands, passed to the patentee, upon the issuing of his patent, in as full an extent and beneficial a manner (subject only to the
1 United v. Schurz, 102 U. S. 378.
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Green v. Liter.
rights of the commonwealth), as the commonwealth itself held them. At thé time of the passing of the act of 1779, Kentucky was a wilderness ; it was the haunt of savages and beasts of prey. Actual entry or possession was impracticable ; and, if practicable, it could answer no beneficial purpose. It could create no notoriety ; it could be evidence to no vicinage of a change of the property. An entry, therefore, would have been a vain and useless and perilous act : and if there ever was a case in which the maxim would apply, that the law does not oblige to vain or impossible things, we think it is such a one as the present. There is no pretence that the legislature have expressly made an entry a pre-requisite to the completion of the title. Such a pre-requisite, if it exist at all, must arise from mere implication only, and under circumstances which would render it nugatory or absurd. We do not, therefore, feel at liberty to insert in the operation of the grant, a limitation which the law has not of itself interposed.
*And this leads us to say, that even if, at common law, an actual J pedis possessio, followed up by an actual perception of the profits, were necessary to maintain a writ of right, which we do not admit, the doctrine would be inapplicable to the waste and vacant lands of our country. The common law itself, in many cases, dispenses with such a rule ; and the reason of the rule itself ceases, when applied to a mere wilderness. The object of the law, in requiring actual seisin, was, to evince notoriety of title to the neighborhood, and then consequent burdens of feudal duties. In the simplicity of ancient times, there were no means of ascertaining titles but by the visible seisin ; and indeed, there was no other mode, between subjects, of passing title, but livery of the land itself, by the symbolical delivery of turf and twig. The moment that a tenant was thus seised, he had a perfect investiture ; and if ousted, could maintain his action in the realty, although he had not been long enough in possession even to touch the esplees. The very object of the rule, therefore, was notoriety, to prevent frauds upon the lord and upon the other tenants. But in a mere uncultivated country, in wild and impenetrable woods, in the sullen and solitary haunts of beasts of prey, what notoriety could an entry, a gathering of a twig or an acorn, convey to civilized man, at the distance of hundreds of miles ? The reason of the rule could not apply to such a state of things ; and cessante ratione, cessât ipsa lex. We are entirely satisfied, that a conveyance of wild or vacant lands gives a constructive seisin thereof, in deed, to the grantee, and attaches to him all the legal remedies incident to the estate : à fortiori, this principle applies to a patent ; since, at the common law, it imports a livery in law. Upon any other construction, infinite mischiefs would result. Titles by descent and devise, and purchase, where the party from whom the title was derived was never in actual seisin, would, upon principles of the common law, be utterly lost.
As to the sixth question. We are of opinion, that in Kentuky, a patent is the completion of the legal title of the parties ; and it is the legal title only that can come in controversy in a writ of right. The previous stages of title are merely equitable, which a court of chancery may inforce, but a court of common law will not entertain. In this opinion, we adopt the #	, principles which the *courts of Kentucky have been understood
-• uniformly to sanction. And this opinion is also an answer to the seventh question.
M2
1814]	OF THE UNITED STATES.	250
Carter v. Cutting.
As to the eighth question. We are of opinion, that a better subsisting adverse title in a third person, is no defence in a writ of right. That writ brings into controversy only the mere rights of the parties to the suit.
At to the ninth question. We have already expressed our opinion, that tenants claiming different parcels of land by distinct titles cannot be joined in a writ of right. If, however, they omit to.plead in abatement and join the mise, it is an admission that they are joint-tenants of the whole ; and the verdict, if for the demandant, for any parcel of the land, may be general, that he hath more mere right to hold the same than the tenants ; and if of any parcel, for the tenants, that they have more mere right to hold the same than the demandant.
As to the tenth question. The general rule is, that if a man enter into lands, having title, his seisin is not bounded by his actual occupancy, but is held to be co-extensive with his title. But if a man enter without title, his seisin is confined to his possession by metes and bounds. In the case put by the court below, the first patentee had the better legal title ; and his seisin, presently, by virtue of his patent, gave him the best mere right to the whole land, upon the principles which we have already stated : d fortiori, he must have the best mere right to the land not included in the actual close of the second patentee. For, by construction of law, he has the eldest seisin as well as the eldest patent.
As to the eleventh point. We are of opinion, that if a man having title to land, enter into a part, in the name of the whole, he is, upon commonlaw principles, adjudged in seisin of the whole, notwitstanding an adverse seisin thereof. But if the land be in the seisin of several tenants, claiming different parcels thereof in severalty, an entry into the parcel held by one tenant will not give seisin of the parcels held by the other tenants ; but there must be an entry into each. Co. Litt. 252 b. By parity of reason, an entry into a parcel, which is vacant, will not give seisin of a parcel which is in an adverse seisin. But an entry into the last parcel, in the name of the whole, will inure as an entry *into the vacant parcel. It does not appear, in the question put by the court below, into which parcel the *-entry is supposed to be made.
Such are the unanimous opinions of this court, which are to be certified to the circuit court of Kentucky.
Carter’s heirs v. Cutting and wife, (a)
Appellate j urisdiction.
An appeal lies to this court from the sentence of the circuit court of the district of Columbia, affirming the sentence of the orphans’ court of Alexandria county, which dismissed a petition to revoke the probate of a will.
This was an appeal from the Circuit Court for the district of Columbia.
E. J. Lee, for the appellants : Taylor, for the appellees.
March 11th, 1814. Story, J., delivered the opinion of the court, as follows :—The appellants, who are heirs-at-law of Sally Carter, deceased,
(a) February 19th, 1814. Absent, Washington, Justice.
153
251	SUPREME COURT	[Feb’y
Carter v. Cutting.
petitioned the orphans’ court of the county of Alexandria, to revoke and repeal the prohate of the will of the said Sally Carter, procured by the respondents, upon the ground, that the said will was admitted to probate, without notice to the appellants, and that the supposed testatrix was an inhabitant of and resident in Virginia, at the time of her death, and left no assets, real or personal, or debts, in the county of Alexandria. The orphans’ court, without issuing a summons to the respondents, dismissed the petition, and upon an appeal, this dismissal was confirmed by the circuit court of the district of Columbia.
Two objections have been taken to the sustaining of the appeal to this court: 1. That by the act of congress of 27th February 1801, c. 86, § 12 (2 U. S. Stat. 107), it is enacted, that on appeals from the orphans’ *court to the circuit court, the latter “shall therein have all the *2521	’
J powers of the chancellor ” of the state of Maryland ; and by the laws of Maryland, the decree of the chancellor in a like case would be final: 2. That the decree of dismissal is not any final judgment, order or decree of the circuit court, wherein the matter in dispute, exclusive of costs, exceeds $100.
The majority of the court cannot yield assent to the validity of either of these objections. As to the first, we are of opinion, that the conclusiveness of its sentence forms no part of the essence of the powers of the court. Its powers to act are as ample, independent of their final quality, as with it. Besides the act of February 27th, 1801, § 8 (2 U. S. Stat. 106), has expressly allowed an appeal from “all final judgments, orders and decrees of the circuit courts,” Where the mattei’ in dispute exceeds the limited value, and there is nothing in the context to narrow the ordinary import of the language. We cannot admit that construction to be a sound one, which seeks, by remote inferences, to withdraw a case from the general provisions of a statute, which is clearly within its words and perfectly consistent with its intent. The case of Young v. Bank of Alexandria, 4 Cranch 384, is, in our judgment, decisive against this objection.
As to the second objection, it is conceded by both parties, that the estate devised to the respondent, Sally C. Cutting, is worth several thousand dollars. If, then, the probate of the will had any legal operation, and was not merely void, the controversy as to the validity of that probate was a matter in dispute equal to the value of the estate devised away from the heirs. It cannot be doubted, that the orphans’ court had jurisdiction to allow probate of wills, made by persons in foreign states ; and that probate, once allowed, operated as a sentence affirming the validity of such wills between the parties, so far as the lex loci could give them operation. It is understood, that a will regularly proved in another state, in strict conformity with the laws of that state, acquires, if it possess the other legal requisites, a binding efficacy in Virginia, so that it may be admitted to record *2531 there. The estate devised is understood to be situated *in Virginia,
J and the title of the heirs thereto would, consequently, be affected by the probate in this district. The probate, then, not. being merely void, but affecting the title to lands exceeding $100 in value, is a matter in controversy beyond that value, within the purview of the act of 1801.
The decree of the circuit court dismissing the petition is reversed, and
154
1814]	OF THE UNITED STATES.	253
The Venus.
the cause is to be remanded to that court, with directions to proceed to a hearing upon the merits.
Decree reversed.
The Venus, Rae, Master.
Prize of war.
If a citizen of the United States establishes his domicil in a foreign country, between which and the United States hostilities afterwards break out, any property shipped by such citizen, before knowledge of the war, and captured by an American cruizer, after the declaration of war, must be condemned as lawful prize.1
Upon a shipment of goods, to be sold on joint account of the consignee and shipper, or of the latter alone, at the option of the consignee, the right of property does not vest in the consignee, until he has made his election, under the option given him.
If two partners own jointly a commercial house in New York, and one of them obtain an American register for a ship, by swearing that he, together with his partner, of the city of New York, merchant, are the only owners of the vessel for which the register is obtained, when, in fact, his partner is domiciled in England, the vessel is liable to forfeiture, under the act of congress of December 31st, 1792.
Appeal from the sentence of the Circuit Court for the district of Massachusetts. The following were the facts of the case, as stated by Washington, J., in delivering the opinion of the court.
This is the case of a vessel which sailed from Great Britain, with a cargo belonging to the respective claimants, as was contended, before the declaration of war by the United States against Great Britain was or could have been known by the shippers. She sailed from Liverpool, on the 4th of July 1812, under a British license, for the port of New York, and was captured, on the 6th of August 1812, by the American privateer Dolphin, and sent into the district of Massachusetts, where the vessel and cargo were libelled in the district court.
The ship, 100 casks of white lead, 150 crates of earthenware, 35 cases and 3 casks of copper, 9 pieces of cotton bagging, and a quantity of coal, were claimed by Lenox & Maitland. 198 packages of merchandise and 25 pieces of cotton bagging were claimed by Jonathan Amory, as the joint property of James Lenox, William Maitland and Alexander *McGregor ; not distinguishing the proportions of each : but the 25 pieces of cotton L bagging were afterwards claimed for McGregor as his sole property, and also 5 trunks of merchandise. 21 trunks of merchandise were claimed by James Magee, of New York, as the joint property of himself and John S. Jones, residing in Great Britain.
The district court, on the preparatory evidence, decreed restitution to Magee & Jones, and also to Lenox & Maitland, except as to the 100 casks of white lead ; as to which, and as to the claim of McGregor, further proof was ordered. From this decree, so far as it ordered restitution of the merchandize to Magee & Jones, and to Maitland, and of the ship to Lenox & Maitland, the captors appealed to the circuit court, where the decree was affirmed pro formâ, and an appeal was taken to this court.
In April 1813, the cause was heard, on further proof, in the district
1 The Frances, joosi, p. 371. See United States v. Guillem, 11 How. 60; The William Bagaley, 5 Wall. 408 ; Miller v. United States, 11 Id. 305.
155
254	SUPREME COURT	[Feb’y
The Venus.
court; and in August, the claim of McGregor was rejected, as well as that of Lenox & Maitland to the white lead. But at another day, on a further hearing, the court ordered restitution to McGregor of one-fourth of the property claimed by him, and condemned the other three-fourths as belonging to his partners, being British subjects. Both parties appealed, as did also Lenox & Maitland, in relation to the white lead. A pro forma decree of affirmance was made, from which an appeal was taken to this court.
Maitland, McGregor and Jones were native British subjects, who came to the United States, many years prior to the present war, and, after the regular period of residence, were admitted to the rights of naturalization. Some time after this, but long prior to the declaration of war, they returned to Great Britain, settled themselves there, and engaged in the trade of that country, where they were found carrying on their commercial business, at the time these shipments were made, and at the time of the capture. Mait-*2kk-| land is yet *in Great Britain, but has, since he heard of the capture, J expressed his anxiety to return to the United States ; but has been prevented from doing so, by various causes set forth in his affidavit. McGregor actually returned to the United States some time in May last; Jones is still in England.
Pitman, for the captors.—In relation to the several claims set up in this case, it will be contended, on the part of the captors, 1st. That they are to be determined, as it respects the capacity to claim, by the national character of the claimants, at the time of the capture. If the claimants, at the time of capture, were British subjects, the property is undoubtedly liable to condemnation.
It is admitted, on all hands, that the claimants, Maitland, McGregor and Jones, had acquired a domicil in Great Britain, at the time of the declaration of war ; and were actually domiciled in that country, at the time of the capture : they must, therefore, be considered as British subjects, in reference to the property claimed by them respectively. Nor will an intention to return to the United States, if that intention be not manifested until after the capture, be of any avail; for it is a principle in prize law, that the national character of property, during war, cannot be altered, in transitu, by any act of the party, subsequent to the capture.
The following cases are considered as going to establish the foregoing positions: The Herstelder, 1 Rob. 97, 115 ; The Danckebaar Africaan, Ibid. 90, 107 ; The Boedes Lust, 5 Ibid. 207, 257 j- The Indian Chief, 3 Ibid. 12, 17 ; The Vigilantia, 1 Ibid. 11, 13 ; The Experiment, 2 Dall. 42 ; The Indian Chief, 3 Rob. 29 ; Livingston v. Maryland Ins. Co., 7 Cr. 506 ; The Eranklin, 3 Bos. & Pul. 207 n ; The Citto, 3 Rob. 37,38 ; The Diana, 5 Ibid. 60 ; The Harmony, 2 Ibid. 264, 322 ; The Jonge Klassina, 5 Ibid. 265, 270.
It appears, that Maitland has, since he heard of the capture, expressed *2501 his anxiety to return to the United *States ; and that McGregor did
J actually return. But we contend, upon the principle above stated, that neither the intention of Maitland, although formally naturalized in this country, noi’ the actual return of McGregor, inasmuch as they did not take place until after the capture, can avail for the purposes of their respective claims.
And even if it should be proved, that Maitland’s intention to return
156
1814]
OF THE UNITED STATES.
The Venus.
256
existed previous to the capture, it would not avail him, if nothing more than intention could be proved. The case of The President, 5 Rob. 277, is in point : it is there decided, that an intention to return is of no avail, unless that intention be evidenced by some overt act. Here, no such overt act, on the part of Maitland, is proved. The following cases go to establish the same point: The Citto, 3 Rob. 37, 38 ; Curtissos' Case, cited in The Diana, 5 Ibid. 65, and in The Indian Chief, 3 Ibid. 12, 17. As to McGregor, see The Harmony, 3 Ibid. 264, 322.
McGregor’s return to America, after capture of the vessel, will not avail him unless he can prove, 1st. That he had, previous to the capture, set himself in motion to return. 2d. That he had done so, with a bond fide intention of remaining in America. 3d. That he had no intention of returning to England. See the case of The Indian Chief, 3 Rob. 17, 12.
But the national character of these parties, Maitland, McGregor and Jones, does not depend upon domicil. They were originally native subjects of Great Britain ; and, after being naturalized in this country, they returned to England, and resumed their native allegiance, in violation of their oath of naturalization. By this conduct, we contend, that they lost the character of American citizens, and could not flagrante bello, resume it, for the mere purpose of protecting their property. In a court of the law of nations, as well as by the navigation laws of the United States, they cannot but be considered *as British subjects. In the case of La Virginie, 5 Rob. r*257 98, Sir W. Scott said, “ It is always to be remembered, that the *-native character easily reverts, and that it requires fewer circumstances to constitute domicil, in the case of a native subject, than to impress the national character on one who is originally of another country.”
It is not necessary to contend against the doctrine of expatriation. We do not deny the right. We contend only, that in order to render his naturalization valid, for the purposes in question, a man must expatriate himself bond fide, must remove from his original country and not return to it, animo manendi. In support of this doctrine, see the act of congress of March 27th, 1804 (2 U. S. Stat. 206), also act of 31st December 1792, § 2 (1 Ibid. 288), Talbot v. Jansen, 3 Dall. 153. The British doctrine on this subject is well known. “ Once a British subject, always a British subject,” is an established rule in the English law. Great Britain respects the naturalization laws of the United States only for commercial purposes. If one of her subjects be naturalized in this country, and afterwards return to a British territory, she considers him as still, to all intents and purposes, a British subject. She does not even require him to abjure his adopted allegiance.
It is to be presumed, that Maitland, McGregoi’ and Jones knew the laws of their own country : yet, with this knowledge, they returned to England ; and that, as it appears from their subsequent conduct, not for a temporary purpose merely, but animo manendi. They have estalished there a house of trade. They have placed themselves and their property under the protection of Great Britain, and cannot now, with any show of reason, claim protection from the United States, although the United States may still claim something from them. Murray v. The Charming Betsey, 2 Cr. 120.
It is evident, from all the circumstances of the present case, that. Maitland did not intend to return to the United States, until he heard of r*o-a the capture of the vessel : *on the contrary, it appears that, with a *•
157
258	SUPREME COURT	[Feb’y
The Venus.
full knowledge of the war, he made his election to remain in England. When McGregor left England for the United States, he embarked as a British subject. His passport was from the privy council, and signed by Lord Sidmouth ; whereas, American citizens obtained their passports from the alien office. He is still a partner in a house of trade in England ; he is engaged in a British trade. It remains for these parties to explain their conduct. We have stated the facts, and the burden of proof now lies on the claimants. Such would be the rule, even if they were neutrals. The Citto, 3 Rob. 37, 38 ; The Dree Gebroeders, 4 Ibid. 191, 232 ; The Pernon, 1 Ibid. 88, 104 ; The Vigilantia, Ibid. 12, 15 ; The Portland, 3 Ibid. 40,41; The Ocean, 5 Ibid. 91 ; The Harmony, 2 Ibid. 264, 322.
In attempting to establish the national character of these claimants, as American citizens, it was said in the court below, that they held landed property in this country. This argument is overthrown by the decision in the case of The Dree Gebroeders cited above ; 4 Rob. 194, 235.
2.	It appears that McGregor has fraudulently attempted to cover the whole property in question; his claim, therefore, being false in part, he cannot recover even his own share, although we should admit him to be an American citizen. The whole, therefore, is justly liable to condemnation. The Susa, 2 Rob. 212, 257 ; The Odin, 1 Ibid. 210, 250 ; The Rosalie and Petty, 2 Ibid. 281, 343 ; The Graaf Pernstorf, 3 Ibid. 92, 109 ; The Jonge Pieter, 4 Ibid. 65, 74.
3.	As to the claim of Lenox & Maitland to the ship, we contend, 1st. That, under the act of congress of March 27th, 1804 (2 U. S. Stat. 206), she cannot be considered as an American vessel. By that act, it is declared, “ That no ship or vessel shall be entitled to be registered as a ship or vessel of the United States, or, if registered, to the benefits thereof, if owned, in whole or in part, by any person naturalized in the United States, and resid-¡jcqkq-i ing for more than one year in *the country from which he originated, &c. But Maitland had been residing in England more than a year, and consequently, was not entitled to an American register. 2d. That Lenox being found in violation of the law, as it respected the ship’s register, he is not rectus in curid for the purpose of claiming the ship. Vide the cases cited in The Rapid, on this point, viz., The Walsingham Packet, 2 Rob. 72, 77 ; The Cornelis and Maria, 5 Ibid. 28, 32 ; The Recovery, 6 Ibid. 348. 3d. That Lenox & Maitland having attempted to conceal enemy’s property (the 100 casks of white lead), and to withdraw the same from the belligerent rights of the United States, by a fraudulent shipment and claim, their claims to the property captured therewith must be rejected, and the penalty of confiscation attaches to the same. This principle is intended to be applied to the claim of Maitland as well to the cargo as to the ship.
There can be no reasonable doubt, that the lead belonged to some person or persons other than the claimants. The following facts are considered as conclusive on this point: 1. The original bill of parcels inclosed in a letter dated 3d July 1812, from Wm. Maitland & Co. to Leilox & Maitland, is headed thus : “ Thomas Holloway bought of Thomas Walker, Malby & Co., lead merchants,” and is dated at Liverpool, June 2d, 1812. 2. In the bill of lading of the goods claimed as the property of Lenox & Maitland, in which the white lead is included, the freight and primage is cast upon the lead, in 158
1814]
OF THE UNITED STATES.
The Venus.
259
the margin of the bill of lading, and not upon the crates, copper, bagging or coal. 3. To a letter from Maitland to Lenox, of 22d August 1812, found on board the Lady Gallatin, is annexed a list of goods shipped by William Maitland & Co., by the Venus, on account of and consigned to Messrs. J. Lenox and William Maitland. In this list, all the goods claimed by Lenox & Maitland, and by Lenox, Maitland and McGregor, are enumerated, except the white lead. 4. Upon the order for further proof, in the district *court, no further proof was offered respecting the lead. Maitland, in his affidavit made January 7th, 1813, in Liverpool, swears that the *-copper, crates, coals and bagging were purchased and shipped on board the Venus, on the sole account and risk of himself and Lenox : he also swears as to their joint property with McGregor; but says not a word about the lead. From these circumstances, we must conclude, that the white lead was the property of Thomas Holloway, an acknowledged British subject; that it is, therefote, liable to condemnation, and subjects the property captured with it to the same fate.
4.	In respect to the claim of Magee & Jones, we contend, that at the time of capture, the property belonged solely to Jones, a British merchant and subject, and is, therefore, to be condemned as enemy property. In the bill of lading of these goods, they are expressed to be shipped by McGregor & Co. unto and on account of James Magee & Co., of New York. The invoice is signed by Jones, at Manchester, and describes them as goods to be shipped on board the Venus, and to be consigned to James Magee & Co., of New York ; but does not specify on whose account and risk. It is, therefore, to be considered, as at the risk of Jones. Vide on this point, the case of The Marianna, 6 Rob. 27.
In a letter from John S. Jones to James Magee & Co., dated at Manchester, 1st July 1812, he says, “This serves to hand you invoice of 21 trunks prints, per Venus, amount 1323Z. 13s. Oc?., subject to the same terms as the goods per Aristomenes ; that is, to be sold on joint account, or on mine, at your option.” Now, to effect a change of property, it is essential, that there be a contract of sale agreed to by both parties. Here appears to have been no such contract. The property, therefore, at the time of capture, was exclusively in Jones. If Jones had a right to stop these goods in transitu, so had the United States, who, by the laws of war, succeeded to his rights. The Constantia, 6 Rob. 127. The Copenhagen, 1 Ibid. 245, 291, is an analogous case.
* Stockton, contra, for McGregor, contended, 1st. That McGre-gor, to the exclusion of his partners, Lenox and Maitland, was *• owner of one-half of 198 packages of Manchester goods, and one-half of 25 pieces of cotton bagging, and to the whole of five trunks of goods. 2d. That these goods were not the goods of an enemy, and ought to be restored to McGregor as an American citizen.
In support of the first point, he relied on the ship’s papers, on certain letters of Maitland & Co., and of McGregor himself, on the affidavits of McGregor in the court below, &c. He contended, that the testimony on this point, introduced since the evidence in prceparatorio, was incompetent; but if competent, not important. The cause was heard in September 1812, and further proof allowed for the claimants ; but no such order on the part
159
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of the captors, nor any order to proceed by plea and proof. The cause stood, on their side, on the proof taken in proeparatorio. The evidence introduced by them is upon simple affidavit. The Adriana, 1 Rob. 263, 313. Letter from Sir W. Scott and Sir J. Nicholl to Mr. Jay, 1 Rob. (Am. ed.) p. 8.
Second point. As to the national character of McGregor. He came to the United States a minor ; was an established merchant in New York before 1795 ; he was then naturalized; he married in New York, and purchased a house there, before his departure for England, which he still retains : he has also purchased large tracts of land in the states of New York and New Jersey, which he yet owns : he resided about twelve years in New York. His return to England was produced by temporary causes. In 1798, he returned thither on account of the sickness of his wife, who died in Scotland. His second return was for his own health. In 1805, he commenced business in Liverpool, as an American merchant. His employment was that of an American merchant, shipping goods from England, and receiving American produce to sell there on commission. His residence in England was in time of peace : it was lawful, and could in no manner impair *26°1 hi8 rights as a *citizen of the United States. He had no intention to
J abandon his American rights, or to remain permanently in England ; but intended to return to the United States, whenever his duty should require him to return. Such a residence, in time of peace, could not stamp a hostile character upon him ; and at the breaking out of war, he was entitled to a reasonable time to depart from the British dominions, before he could forfeit his American character, and become identified with the enemy. He did depart therefrom, and returned to the United States, with his family, within a year after the declaration of war. His having formed a connection in trade with British partners was a lawful act, which did not derogate from his American character, but extended and facilitated his business as an American merchant.
Congress did not mean to authorize the capture of property belonging to mere inhabitants of the hostile country. When the bill to authorize the president to issue letters of marque was brought into the senate of the United States, in June 1812, it authorized him to issue them against all persons inhabiting in Great Britain or its territories or possessions ; but was amended in the senate, so as to authorize him to issue them only against the united kingdom of Great Britain and Ireland and the subjects thereof. See the Secret Journal of the Senate for June 1812.
Many cases have been cited by the counsel for the captors, in his endeavor to prove this a case for condemnation. The answer to most of them is, that the contrqversy in those cases was between neutrals and belligerents ; not between Great Britain and her subjects. The two cases are entirely different in principle. The connection between a citizen and his government depends on the municipal law of the land. The rights of a neutral depend upon the law of nations.
With regard to the doctrine of naturalization, it is well known, that, by the law of England, a person naturalized by act of parliament is as much a subject, to all intents and purposes, as a native. Co. Litt. 129 a ; 1 Bl. Com. 374. McGregor, we have seen, was naturalized in the United States. But it is said, that he has returned to his former allegiance, and thereby 160
1814]
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*263
*lost his American character. This we deny. He returned to England in time of peace, by which, we contend, he neither forfeited nor abandoned his character as an American citizen. Our act of naturalization contains nothing to authorize the opinion that he did. Nor could he throw off his adopted allegiance, if he would. If found in arms against us, he would be punished as a traitor.
The act of March 1804, which has been cited by the captors, merely declares that a naturalized citizen shall lose one particular privilege of his citizenship, by residing for more than a year in the country from which he originated ; from which, the implication is clear, that he shall retain all his other privileges.
In the case of The Charming Tetsy, 2 Cranch 64, and in the case of Mcllvaine v. Coxe’s lessee, 4 Cranch 211, the decision of this court was, that residence in a foreign country does not deprive an American citizen of his rights as such. It has been decided also, that by such residence, in time of peace, the national character is not changed upon the sudden breaking; out of a war. Residence in time of peace is lawful; and if the person so. residing return to his own country, in a reasonable time after the breaking; out of the war, he does not lose his original national character. Marry at v. Wilson, 1 Bos. & Pul. 442 ; Vattel, lib. 1, c. 19, § 218, p. 169. Sir W.. Scott has never said, that such a residence would, on the sudden breakingout of a war, give a hostile character to the resident: he has never gone so, far as to condemn property situated like that now in question. The Ocean,. 5 Rob. 90.
Vattel (lib. 3, c. 4, § 63, p. 477) says, that the sovereign declaring; war is to allow those subjects of the enemy who are within his dominions at the time of the declaration, a reasonable time for withdrawing with their effects and certainly a nation ought not to grant less indulgence to its own citizens, than the enemy allows them. I trust, this court is not yet prepared to adopt, even with respect to neutrals, much less with regard to American, citizens, the rigid rules of the British court of admiralty—a mere political court; a prerogative court regulated by the king’s orders ini council, *designed to give Great Britain the sovereignty of the ocean, to sub- r*2fi4 ject the whole commerce of the world to her grasp, and to make the law of nations just what her policy would wish it to be.
It is doubtful, whether the court ought to condemn, under the circumstances of the present case, although it should be proved that the property in question was enemy property. The shipment, in the present case, was made on the faith of the representations of the American charge d'affaires, Mr. Russell; who had given it as his opinion, that property shipped after the repeal of the British orders in council, and before knowledge of the war, would be admitted into the United States. Under these circumstances, the conduct of the owners of this property was perfectly justifiable. It has been decided in a British court, that property which comes into the possession of a nation, under the public faith, is not liable to forfeiture, and congress has virtually acknowledged the same principle, by passing the act of 27th February 1813, remitting the forfeitures which had accrued under the non-intercourse act of March 1st, 1809. (2 U. S. Stat. 804.) Wide Mr. Russell’s statement in the report of the committee of congress, Journal of House of Representatives ; and the case of The Althea, cartel, which was
8 Cranch—11	161
2C4	SUPREME COURT	[Feb’y
The Venus.
captured at Halifax as American property, and discharged by Judge Croke, because it came into the possession of the British under the public faith.
Pitman, as to the objection to the invocation of papers from other courts, cited the following authorities : 14th Interrogate, 1 Rob. (Am. ed.) 323 ; The Romeo, 6 Ibid. 351; The Convenientia, 4 Ibid. 170, 205 ; The Magnus, 1 Ibid. 27, 31 ; The JEenrom, 2 Ibid. 2, 3 ; The Susa, Ibid. 211, 254 ; The Rosalie and Petty, Ibid. 281, 343. He observed, that there was an order, in the circuit court, for further proof on the part of the captors, saving the question whether it were a case for further proof.
Harper, for Lennox & Maitland, and Jones & Magee. Lennox & Mait-land claim, * 1st. The ship Venus. 2nd. As their joint property, the
J white lead, crates, copper, cotton bagging and coal. 3d. One moiety of 198 packages of merchandise and cotton bagging, as the joint property of Lennox & Maitland and Alexander McGregor, and shipped by them.
Magee & Jones claim 21 trunks of prints, part of the cargo of the Venus, as their joint property.
Lenox and Maitland are natives of Scotland. They removed many years ■.since to New York, where the former was naturalized, on the 10th of November 1794, and the latter, on the 8th of July 1804. They entered into partnership in trade, in 1797, and established their house in New York, in which they were alone interested, under the name and firm of J. Lenox & W. Maitland ; which has continued to the present time. For fourteen years, they both resided, without interruption, in the city of New York, carrying on the business of their American* house, as American citizens ; and, as -such, they hold valuable real estate in the city and in the state of New York, and also hold American registered ships. Lenox still resides in New York ; but Maitland, in July 1810, to promote the interest of their commer-<cial establishment in New York, by attending the sales of the shipments to Europe and the returns to America, went to Liverpool, in England, where, in 1811, he took a house and counting-room, and transacted business for the said concern, under the name and firm of W. Maitland & Co., consisting Only of said Lenox and Maitland. He has long since given up his countingroom, and attempted to dispose of his house ; and is still in England, detained there by sickness. In July 1812, and long before and at the time of the capture of the Venus, by the Dolphin, Lenox and Maitland were the sole owners of the said ship, under an American register. The Venus sailed from Liverpool for New York, on the 4th of July 1812, with a cargo of British produce and manufactures, the proceeds of the funds of Lenox & Maitland, with instructions to wait off the Hook, to know if the goods could be landed. * Proceeding *with her cargo on this voyage, she was captured and
-I libelled as has been before stated.
James Magee was naturalized, 9th August 1803, and has ever since resided and been established in New York. John S. Jones was naturalized, 10th December 1795, and resided in New York thirteen years. In 1810, he went to Manchester (England), and arrangements were made for shipping goods to Magee, the partner in New York.
It has been contended, on the part of the captors, with regard to the ship, that, by the laws* of the United States, she is not to be deemed an American ship, noi* entitled to the benefits of an American register, on account
162
1814]	OF THE UNITED STATES.	206
The Venus.
of the residence of Maitland in Liverpool, for more than a year. Admitting, for the sake of argument, that this position is correct, still, we contend, that the ship is not forfeited. She has merely incurred the disability attached to a foreign ship. Her owners are still American citizens, but have lost the privilege of availing themselves of the register. It is contended, however, that this very disability which attaches to the ship, renders her belligerent property. This is truly a novel doctrine. There is no law by which it can be supported.
As to the right of Lenox to his share of the ship, there can be no reasonable doubt. He is certainly an American citizen, and has done nothing to forfeit that character. He has been naturalized in this country, and has continued to reside here ever since. It is said, however, that he has made a false claim to the white lead. This point will be considered in the course of the argument.
Maitland, it is true, has been residing in England for a considerable time past; and it is upon this ground, that the ship and cargo, are claimed by the captors. They contend, that his residence in England (although an American citizen) clothes him with a hostile character. *To this it may be answered, that the residence which imparts a hostile charac-ter, must be residence connected with some act of commerce blended with the commercial transactions of the enemy. Mere residence does not give a hostile character, so long as the resident refrains from all voluntary acts tending to the aid and comfort of the enemy. If he engages in the enemy’s commerce, he must, to be sure, be considered as an enemy ; but even then, only to the extent of the commercial property engaged in the hostile trade, which may chance to be captured. A man in an enemy’s country may send home books or furniture purchased, before the war, for his own use, and they will not be hostile property. There must be a trading with the enemy, to constitute an offence. Trading is essential; time is not. A mere continuation in an enemy’s country, after the commencement of hostilities, without any act of trade, has never been decided to constitute a man an enemy. Sir W. Scott himself allows a person found in the enemy’s country, a reasonable time to withdraw his effects, and even to trade with the enemy, so far as it may be necessary for the removal of his property. The Indian Chief, 3 Rob. 12, 17 ; The Madonna delle Gracie, 4 Ibid. 161, 195 ; The Hoop, 1 Ibid. 165, 196.
But it is said, that though an illegal act should be proved to have been committed by Maitland, yet that Lenox has been guilty of making a false claim to part of the cargo, which act of Lenox has criminally affected the property of Maitland. We answer, that the doctrine on the subject of covering enemy property, applies only to neutrals ; but Lenox was a citizen of the United States. Besides, it does not by any means appear, that, in making this claim, Lenox was influenced by a fraudulent motive. His conduct was, in all probability, owing to mistake. He had not seen the letters and papers proving the property, claimed by him, to belong to the enemy ; and therefore, cannot be supposed to have known that fact.
It is further urged by the captors, that a letter by the Lady Gallatin, of 22d August 1812, shows that a purchase of 100 bags of cotton was made by Maitland, after knowledge of the war. *To the admissibility of r*2gQ the invoked papers, among which this letter is one, we have already *•
163
268	SUPREME COURT	[Feb’y
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objected, and must still insist upon the objection. Setting aside those papers, it does not appear, that Maitland did purchase the cottorr, after knowledge of the war : and the presumption ought to be in his favor. But suppose, this .single purchase was made one day after war was known to exist (which is all the captors contended for), is this sufficient to fix a hostile character, especially, under circumstances like those attending this transaction, when it was universally supposed, that the repeal of the orders in council would have put an end to the war ?
With regard to Jones, it has only been proved, that he was residing in England, a few months after the commencement of hostilities ; but there is no evidence that he has not returned; nor is there any evidence of his having traded with the enemy. The burden of proof lies on the captors.
Defter, in reply.—In cases like that now before the court, the advantage in obtaining evidence is clearly on the side of the claimants. They have in their power the knowledge of all the facts relative to the case. The evidence in prceparatorio consists of the documents on board the ship, and the testimony of the crew. They may make out their own case. If the evidence in their favor be deficient, they may have an order for further proof, which does not give the captors any opportunity of introducing further evidence on their part. Under circumstances so manifestly advantageous, if the claimants do not fully prove their case, the presumption must be against them. Whether the claimants in the present case have satisfactorily done so, it is for the court to decide.
With regard to the question of domicil. Sir W. Scott has decided, that the animus manendi is to be presumed, under circumstances perfectly analogous to those of the present case. Wbat are the facts with regard to the several parties whose claims are now disputed ? McGregor, it appears, is a native of Scotland : he became a citizen of the United Statesj by naturalization, in 1795, and resided at New York until 1802, except a temporary *9RQ1 *visit native country, for the health of his wife. In 1802, he
J left New York for his own health, and in 1804, established himself in a house of trade in Liverpool (England), in connection with James Den-nistown, a British subject. Two other partners were afterwards admitted, both British subjects. McGregor was the only one of the partners who resided in Liverpool, and was the acting partner of the concern. lie married a second wife in Great Britain, and had several children there, during his residence in Liverpool. These facts are abundantly sufficient to establish his domicil.
The question, then, remains—did he take timely and sufficient steps, after knowledge of the war, to divest himself of his British character, and return to the United States ? This does not appear. On the contrary, it appears from papers invoked and introduced into this cause, and it is not contradicted, that he continued his connection with his British partners, ten months after the declaration of war, and as acting partner of the house, made a shipment to Halifax. He has not, in any of his affidavits, declared that he did not continue his trade. The testimony on his part does not deny all secret trusts. He comes into court, well informed of the suit, yet without the books, articles of partnership, original bills of parcels, and the other papers connected with the transactions under consideration.
164
1814]	OF THE UNITED STATES.	269
The Venus.
It has been urged in his defence, that being a commission-merchant, having the property of others in his hands, and being the only acting partner of the firm, he was justified in remaining in England, until he could wind up his business. But this is no sufficient justification. The contracts of a citizen residing abroad, must be consistent with the interests of his country. If the good of his country requires, his return, as in the event of war, it is his duty to leave his business in other hands. McGregor might have left his affairs to the care of his partners.
Most of the facts with regard to Maitland have been already stated. • It may be added, however, that he continued to reside in England and was transacting business *there, as late as April 1813 ; whereas, the war was known on the 24th or 26th of July 1812. In his letter of the L 22d of August 1812, in which he informs his partner of a purchase of cotton wool he had just made, he says nothing of any intention of returning to the United States. His continuance in England is defended on nearly the same grounds as that of McGregor, viz., his extensive mercantile concerns. Sickness was not alleged by him as an excuse, until 13th April 1813.
As to the goods shipped by Jones, it has already been observed, that in his letter to Magee of 1st of July 1812, he gives him his option either to be interested in them or not. Of course, at the time of the shipment, they were the sole property of Jones ; and before the letter was received by Magee—before there was a possibility of his making an election—the goods were captured ; but it is an acknowledged rule of prize law, that the character of goods cannot change in transitu ; at the time of capture, therefore, they were the sole property of Jones, and must, we contend, be condemned in toto.
Besides the particular circumstances which have been urged in justification of the individuals concerned in this cause, a general defence has been set up, viz : -That though the property in question should be determined to be British, yet it came here under the faith of the nation ; and is, therefore, entitled to protection. Vattel, it is said, lays down this doctrine : this is not denied. But did the property in controversy come into the country under the national faith ? It was not here, at the breaking out of hostilities. It was not brought into the country, until after the declaration of war; and then it was brought in as a prize of war. Besides, if it was considered as protected on this principle, why was the attempt made to cover it under the name of McGregor ? This has a suspicious appearance ; and shows clearly that the claimants themselves placed little reliance on the circumstance which is now urged in their defence.
As to the objection to the admission of the invoked papers, it need only be observed, that the counsel for the *claimants is under a mistake on r^9>71 the subject. There was an order for further proof on the part of the *-captors ; and under that order, these papers were invoked.
The great question of law on the subject of domicil yet remains to be examined. Three classes of residents are recognised by the law of nations. 1st. Mere residents. 2d. Domiciled residents. 3d. Natural-born subjects.
Before entering upon the discussion of the main question, I would remark, -with regard to some observations which have fallen from the counsel for the claimants, respecting the severity of the rules adopted by the British court of admiralty, that these rules have been applied by Sir W.
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Scott with equal rigor to British subjects as to neutrals ; which is a sufficient answer to the allegation that they have been introduced merely to subserve the grasping policy of the British nation, and destroy all neutral commerce.
1.	With regard, then, to the first class of residents. It is admitted, that mere residence in a foreign country, for a particular temporary purpose, without engaing in the commerce of the country, is not sufficient to change the national character.
2.	Residence in a foreign country, connected with the carrying on a general trade and mixing in the commercial affairs of the nation, constitutes domicil; thereby making a man, sub modo, a subject of that foreign country : and in case of war breaking out between his original and adopted country, if he continues, notwithstanding, to reside and trade in the latter, he is to be considered by his original country, as invested with a hostile character to all intents and purposes. He ought not, it will be admitted, to be considered in this light, immediately on the declaration of war : he ought, perhaps, to be allowed a reasonable time to make his election whether to *2 "21 remain *w^ere he or return to his own country. Respectable
-* authorities, however, have said that, if required, he is bound to return. Sir W. Scott says, he is bound immediately to put himself in motion to return.
3.	As to mere native subjects, it is needless to make any remarks. The persons whose national character is now in question are natural-born subjects of Great Britain, naturalized in the United States, and who afterwards returned to the country of their nativity. These persons, we contend, are, even without the intervention of a war, as much British subjects as if they had never been naturalized in another country. The British government had a right to prevent their return to the United States. In saying this, we would not be understood as admitting the legality of impressment; the cases are materially different.
The naturalization law of the United States requires permanent residence: and no longer than that residence continues, can a man claim the privileges of naturalization. Before he can be admitted to those privileges, he must abjure all allegiance to the state of which he was before a citizen. By so doing, he binds himself not to return to that state ; by returning, he violates his oath ; and can thereafter claim no protection from the country which he has thus abandoned. Abjuration does not absolve him from his former allegiance ; he may incur new duties, but he cannot swear away his old obligations. It is for this court to explain the true meaning of the law of naturalization. It may, however, be observed, that neither the constitution nor the laws of the United States consider a naturalized citizen in the same light as a native. The laws of Great Britain also, and indeed the laws of every country, make a distinction between the two. A native is considered as a citizen, wherever he goes ; but a person naturalized is no longer looked upon as a citizen, than while he continues in his adopted country. No nation confers the privilege of naturalization without an equivalent; no nation extends its protection to naturalized subjects, if they return to their former country. And shall we be an exception ? Shall we be the first to extend to naturalized foreigners this Quixotic protection ?
h n *The expression “adfidemutriusqueregis” from Calvin's case, has been mis-translated, “ the faith of both kings.” Had that been 166
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The Venus.
the meaning of the phrase, it would have been utrumqrie regum, in the plural: the meaning is, that a man may be the subject of either power according to his residence; Were the doctrine, that he may be the subject of both, correct, he would have it in his power to enjoy the privileges of both governments, without being subject to the duties of either.
With regard to the false claim of Lenox. It is a rule of prize law, that a man who makes a false claim, to protect enemy property, forfeits any property of his own that may be captured with it. This Lenox appears to have done, with respect to the white lead. If he has, not only his own property is forfeited, but that of Maitland, his partner, must share the same fate. What has been said by the counsel for the claimants to exculpate Lenox, is mere conjecture.
As to the ship. It is clear, that the register was improperly obtained— not to say fraudulently. Maitland, by residing in England, was not entitled to an American register. Lenox, by concealing, when on oath, the fact of Maitland’s residence in England, becomes particeps criminis, and if he mixes his interest with that of his partner, the same decree must be rendered as to the property of both.
Stockton, with regard to the withholding of papers with which McGregor was taxed by the counsel on the opposite side, stated, that the decree of the court below was only rendered in October last, when McGregor had the first intimation that the papers were required ; since which, there had not been time to obtain them.
Saturday, March 12th, 1814. (Absent, Livingston, J.) Washington, J., after stating the facts of the case, delivered the opinion of the majority of the court, as follows :—The claims of Maitland, McGregor and Jones are resisted, in toto, upon an objection to the national character of the claimants. The general question affecting *these parties, will, for the present, be postponed, in order to dispose of particular objections which are made •• to all the claims, either in whole or in part, and which will depend on the particular circumstances applying to those cases.
1.	The first claim that will be considered will be that of Lenox & Maitland to the 100 casks of white lead, which, it is contended, is the property of Thomas Holloway, an acknowledged British subject, but shipped in June 1812, by William Maitland & Co. (a house established in Liverpool, and composed of William Maitland and James Lenox), to Lenox & Maitland, a house established at New York, and composed of the same parties. To establish the fact of property in. Thomas Holloway, the captor relies upon the following evidence : The original bill of parcels, inclosed in a letter, under date of the 3d of July 1812, from William Maitland & Co. to Lenox & Maitland, which is headed thus, “ Thomas Holloway bought of Thomas Walkei’ & Co., lead merchants,” dated June 2d, 1812. In corroboration of this primd facie evidence of property in Holloway, the freight and primage of this lead is cast in the margin of the bill of lading, but not so upon the acknowledged property of Lenox & Maitland, the owners of the ship, and included in the same bill of lading ; from which circumstances, it is argued, that this article did not belong to Lenox & Maitland ; since, if it did, no freight could have been charged on it, any more than upon the other parts of the cargo claimed by them. In addition to this, in a list of goods shipped
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by William Maitland & Co. by this vessel, on account of and consigned to Lenox & Maitland, and inclosed in a letter of the 22d August 1812, from the former to the latter, by the Lady Gallatin, all the goods claimed by that house separately, and also by them and McGregor jointly, are- enumerated, except this parcel of white lead. This evidence is certainly very strong to fix a hostile character on this property ; and is rendered conclusive, by the omission of Maitland, in his affidavit made under the order for further proof, to say anything in relation to the white lead, although he is very particular as to all the other property claimed by Lenox & Maitland, and by *2*5] bouse jointly with McGregor. This court is, therefore, of opin-
J ion, that the court below did right in rejecting this claim.
2.	The next claim to be considered, is that of Magee & Jones to a part of the cargo on board this vessel. Magee is a citizen of the United States, settled in New York, and connected with Jones in a house of trade. It is urged by the captors, that the whole of this property ought to have been condemned as the sole property of Jones. The bill of lading of these goods expresses them to be shipped by McGregor & Co., unto and on account of James Magee & Co., of New York. The invoice is signed by Jones, at Manchester, in England, and describes1 them as goods to be shipped on board the Venus, and to be consigned to James Magee & Co., of New York ; but it does not specify on whose account and risk. In a letter from Jones to Magee, dated the 1st of July 1812, covering an invoice of these goods, he says, “ they are to be sold on joint account, or on mine, at your option.” The whole question, as to the exclusive property of Jones in these goods, is rested, by the captors, upon the above expressions giving an option to Magee to be jointly concerned or not in the shipment. The question of law is, in whom the right of property was at the time of capture ? To effect a change of property, as between seller and buyer, it is essential, that there should be a contract of sale, agreed to by both parties; and if the thing agreed to be sold, is to be sent by the vendor to the vendee, it is necessary to the perfection of the contract, that it should be delivered to the purchaser or to his agent, which the master, to many purposes, is considered to be. The only evidence of a contract, such as is now set up, appears in the affidavit of Magee, who states, that in 1810, he was in England, and agreed with Jones, that the latter should ship goods on joint account, when the intercourse between the two countries should be opened ; and that in consequence of this agreement, the present shipment was made. Now, admit that such an agreement was .made, yet the delivery of the goods to the master of the vessel was not for the use of Magee & Jones, any more than it was for the use of the shipper solely ; and consequently, it amounted to nothing so as to divest the property out of the shipper, *2761 un^ Magee should elect to take them on joint account, or *to act as
-* the agent of Jones. Until this election was made, the goods were at the risk of the shipper, which is conclusive as to the right of property.
3.	The next claim is that of Lenox & Maitland to the ship. The facts in relation to this subject are, that James Lenox, as joint-owner, with William Maitland, of this ship, obtained, in November 1811, a register for her, which was granted upon his oath, that he, together with William Maitland, of the city of New York, merchant, were the only owners. At this time, Maitland was domiciled in Great Britain; and it is contended, that the state-
168
1814]
OF THE UNITED STATES.
27 6
The Venus.
ment that Maitland was of New York, was untrue, and subjected the vessel to forfeiture, under the act of congress of the 31st of December 1792 ; and that although no claim is interposed for the United States, still the forfeiture produced by the misconduct of Lenox, is sufficient to turn him out of court, whatever disposition may ultimately be made of t^he property. The rule of the prize court is correctly stated in this argument; and the only question is, whether a forfeiture did accrue to the United States. The act of congress directs, that the owner who takes the oath, in case there are more than one owner, shall, in his oath, specify the names and places of abode of such owners, and that they are citizens of the United States, if such be the fact; and if one or more of them reside abroad, as a partner or partners in a copartnership consisting of citizens, and carrying on trade with the United States, that such is the case. The law then proceeds to declare, that if any of the matters of fact in the said oath alleged, -within the knowledge of the party swearing, shall not be true, the ship shall be forfeited to the United States. It cannot be denied, that at the time this oath was taken, William Maitland was a resident merchant of Great Britain, carrying on trade with the United States ; a fact totally inconsistent with that alleged in the oath, that he was of the city of New York. It is probable, and the court is willing to believe, that this statement was innocently made, under a misconception of the real character which the foreign domicil of Maitland had impressed upon him. But still, the law required explicitness on this point, and marked the distinction between a person residing abroad, and one residing within the United States. It must be admitted, in -point of law, *that the fact sworn to by Lenox was not true ; and the consequence pg 7 7 is, a forfeiture of the ship to the United States. The claim, there- *■ fore, of Lenox & Maitland to this vessel must be rejected. What order shall be made as to the ultimate disposition of the property, must depend upon the opinion which this court may give in some other cases touching this subject.
The great question involved in this, and many other of the prize cases which have been argued, is, whether the property of these claimants who were settled in Great Britain, and engaged in the commerce of that country, shipped before they had a knowledge of the war, but which was captured, after the declaration of war, by an American cruizer, ought to be condemned as lawful prize. It is contended by the captors, that as these claimants had gained a domicil in Great Britain, and continued to enjoy it, up to the time when war was declared, and when these captures were made, they must be considered as British subjects, in reference to this property, and consequently, that it may legally be seized as prize of war, in like manner as if it had belonged to real British subjects. But if not so, it is then insisted, that these claimants having, after their naturalization in the United States, returned to Great Britain, the country of their birth, and there resettled themselves, they became reintegrated British subjects, and ought to be considered by this court in the same light as^if they had never emigrated. On the other side, it is argued, that American citizens settled in the country of the enemy, as these persons were, at the time war was declared, were entitled to a reasonable time to elect, after they knew'Of the war, to remain there, or to return to the United States ; and that, until such election was, bond fide, made, the courts of this country are bound to consider them as
169 .
277	SUPREME COURT	[Feh’y
The Venus.
American citizens, and their property shipped before they had an opportunity to make this election, as being protected against American capture.
There being no dispute as to the facts upon which the domicil of these claimants is asserted, the questions of law alone remain to be considered. They are two 1st. By what means and to what extent, a national character '70] may be impressed upon a person, different *from that which perma-
J nent allegiance gives him ? And 2d. What are the legal consequences to which this acquired character may expose him, in the event of a war taking place between the country of his residence and that of his birth, or in which he had been naturalized ?
1.	The writers upon the law of nations distinguish between a temporary residence in a foreign country, for a special purpose, and a residence accompanied with an intention to make it a permanent place of abode. The latter is styled by Vattel, domicil, which he defines to be, “a habitation fixed in any place, with an intention of always staying there.” Such a person, says this author, becomes a member of the new society, at least, as a permanent inhabitant, and is a kind of citizen of an inferior order from the native citizens ; but is, nevertheless, united and subject to the society, without participating in all its advantages. This right of domicil, he continues, is not established, unless the person makes sufficiently known his intention of fixing there, either tacitly, or by an express declaration. Vatt. p. 92, 93. Grotius no where uses the word domicil, but he also distinguishes between those who stay in a foreign country, by the necessity of their affairs, or from any other temporary cause, and those who reside there from a permanent cause. The former he denominates strangers, and the latter, subjects; and it will presently be seen, by a reference to the same author, what different consequences these two characters draw after them.
The doctrine of the prize courts, as well as of the courts of common law, in England, which, it was hinted, if not asserted, in argument, had no authority of universal law to stand upon, is the same with what is stated by the above writers ; except that it is less general, and confines the consequences resulting from this acquired character to the property of those persons engaged in the commerce of the country in which they reside. It is decided by those courts, that whilst an Englishman, or a neutral, resides in a hostile country, he is a subject of that country, and is to be considered *2791 (even *by b*s own or native country, in the former case), as having
J a hostile character impressed upon him.
In deciding whether a person has obtained the right of an acquired domicil, it is not to be expected, that much, if any, assistance should be derived from mere elementary writers on the law of nations. They can only lay down the general principles of law ; and it becomes the duty of courts to establish rules for the proper application of those principles. The question, whether the person to be affected by the right of domicil had sufficiently made known his intention of fixing himself permanently in the foreign country, must depend upon all the circumstances of the case. If he had made no express declaration on the subject, and his secret intention is to be discovered, his acts must be attended to, as affording the most satisfactory evidence of his intention. On this ground it is, that the courts of England have decided, that a person who removes to a foreign country, settles himself there, and engages in the trade of the country, furnishes, by these acts,
170
1814]
OF THE UNITED STATES.
279
The Venus.
such evidence of an intention permanently to reside there, as to stamp him with the national character of the state where he resides. In questions on this subject, the chief point to be considered, is the animus manendi ; and courts are to devise such reasonable rules of evidence as may establish the fact of intention. If it sufficiently appear, that the intention of removing was to make a permanent settlement, or for an indefinite time," the right of domicil is acquired by a residence even of a few days. This is one of the rules of the British courts, and it appears to be perfectly reasonable. Another is, that a neutral or subject, found residing in a foreign country is presumed to be there animo manendi; and if a state of war should bring his national character into question, it lies upon him to explain the circumstances of his residence. The Bernon, 1 Rob. 86, 102. As to some other rules of the prize courts of England, particularly those which fix a national character upon a person on the ground of constructive residence, or the peculiar nature of his trade, the court is not called upon to give an opinion at this time : because, in this case, it is admitted that the claimants had acquired a right of domicil in Great *Britain, at the time of the breaking out of the war between that country and the United States.	*-
2.	The next question is, what are the consequences to which this acquired domicil may legally expose the person entitled to it, in the event of a war taking place between the government under which he resides and that to which he owes a peririanent allegiance ? A neutral, in his situation, if he should engage in open hostilities with the other belligerent, would be considered and treated as an enemy. A citizen of the other belligerent could not be so considered, because he could not, by any act of hostility, render himself, strictly speaking, an enemy, contrary to his permanent allegiance. But although he cannot be considered an enemy, in the strict sense of the word, yet he is deemed such, with reference to the seizure of so much of his property concerned in the trade of the enemy, as is connected with his residence. It is found adhering to the enemy. He is himself adhering to the enemy, although not criminally so, unless he engages in acts of hostility against his native country, or, probably, refuses, when required by his country, to return. The same rule, as to property engaged in the commerce of the enemy, applies to neutrals ; and for the same reason. The converse of this rule inevitably applies to the subject of a belligerent state, domiciled in a neutral country ; he is deemed a neutral by both belligerents, with reference to the trade which he carries on with the adverse belligerent, and with all the rest of the world.
But this national character which a man acquires by residence, may be thrown off at pleasure, by a return to his native country, or even by turning his back on the country in which he has resided, on his way to another. To use the language of Sir W. Scott, it is an adventitious character gained by residence, and which ceases by non-residence. It no longer adheres to the party from the moment he puts himself in motion, bond fide, to quit the country sine animo revertendi. The Indian Chief, 3 Rob. 12, 17. The reasonableness of this rule can hardly be disputed. Having once acquired a national character, by residence in a foreign country, he ought to be bound by all the consequences of it, until he has thrown it off, either by an actual return to his *native country, or to that where he was naturalized, or r*9P1 by commencing his removal, bond fide, and without an intention of •-
171
281	SUPREME COURT	[Feb’y
The Venus.
returning. If anything short of actual removal be admitted to work a change in the national charactei’ acquired by residence, it seems perfectly reasonable, that the evidence of a bond fide intention to remove should be such as to leave no doubt of its sincerity. Mere declarations of such an intention ought never to be relied upon, when contradicted, or, at least, rendered doubtful, by a continuance of that residence which impressed the character. They may have been made to deceive ; or, if sincerely made, they may never be executed. Even the party himself ought not to be bound by them, because he may afterwards find reason to change his determination, and ought to be permitted to do so.- But when he accompanies those declarations by acts which speak a language not to be mistaken, and can hardly fail to be consummated by actual removal, the strongest evidence is afforded, which the nature of such a case can furnish. And is it not proper that the courts of a belligerent nation should deny to any person the right to use a character so equivocal, as to put it in his power to claim whichever may best suit his purpose, when it is called in question ? If his property be taken, trading with the enemy, shall he be allowed to shield it from confiscation, by alleging that he had intended to remove from the country of the enemy to his own, then neutral, and therefore, that as a neutral, the trade was lawful ? If war exist between the country of his residence and his native country, and his property be seized by the former, or by the latter, shall he be heard to say in the former case, that he was a domiciled subject of the country of the captor, and in the latter, that he was a native subject of the country of that captor also, because he had declared an intention to resume his native character ; and thus to parry the belligerent rights of both ? It is to guard against such inconsistencies, and against the frauds which such pretensions, if tolerated, would sanction, that the rule above mentioned has been adopted.
Upon what sound principle, can a distinction be framed, between the case of a neutral, and the subject of one belligerent domiciled in the country of the other, at the breaking out of the war? The property of each, found engaged in the commerce of their adopted country, belonged to them, *2821 before the war, in their character of subjects of that country, so
J long as they continued to retain their domicil ; and when a state of war takes place between that country and any other, by which the two nations and all their subjects become enemies to each other, it follows, that the property, which was once the property of a friend, belongs now, in reference to that property, to an enemy. This doctrine of the common law and prize courts of England is founded, like that mentioned under the first head, upon national law; and it is believed to be strongly supported by reason and justice. It is laid down by Grotius, p. 563, “that all the subjects of the enemy who are such from a permanent cause, that is to say, settled in the country, are liable to the law of reprisals, whether they be natives or foreigners; but not so, if they are only trading or sojourning for a little time.” And why, it may be confidently asked, should not the property of such subjects be exposed to the law of reprisals and of war, so long as the owner retains his acquired domicil, or, in the words of Grotius, continues a permanent residence in the country of the enemy ? They were before, and continue after the war, bound, by such residence, to the society of which they are members, subject to the laws of the state, and owing a qualified allegiance
172
1814]
OF THE UNITED STATES.
The Venus.
282
thereto ; they are obliged to defend it (with an exception in favor of such a subject, in relation to his native country), in return for the protection it affords them, and the privileges which the laws bestow upon them as subjects. The property of such persons, equally with that of the native subjects in their totality, is to be considered as the goods of the nation, in regard to other states. It belongs, in some sort, to the state, from the right which she has over the goods of its citizens, which make a part of the sum total of its riches, and augment its power. Vatt. 147 ; and also, lib. 1, c. 14, § 182. In reprisals, continues the same author, we seize on the property of the subject, just as we would that of the sovereign ; everything that belongs to the nation is subject to reprisals, wherever it can be seized, with the exception of a deposit entrusted to the public faith. Lib. 2, c. 18, § 344. Now, if a permanent residence constitutes the person a subject of the country where he is settled, so long as he continues to reside there, and subjects his property to the law of reprisals, as a part of the property of the *nation, it would seem difficult to maintain, that the same consequences would L not follow in the case of an open and public war, whether between the adopted and native countries of persons so domiciled, or between the former and any other nation.
If, then, nothing but an actual removal, or a bond fide beginning to remove, can change a national character, acquired by domicil, and if, at the time of the inception of the voyage, as well as af the time of capture, the property belonged to such domiciled person, in his character of a subject, what is there that does, or ought, to exempt it from capture by the privateers of his native country, if, at the time of capture, he continues to reside in the country of the adverse belligerent ? It is contended, that a native or naturalized subject of one country, who is surprised in the country where he was domiciled, by a declaration of war, ought to have time to make his election to continue there, or to remove to the country to which he owes a permanent allegiance ; and that, until such election is made, his property ought to be protected from capture by the cruizers of the latter. This doctrine is believed to be as unfounded in reason and justice, as it clearly is in law. In the first place, it is founded upon a presumption that the person will certainly remove, before it can possibly be known, whether he may elect to do so or not. It is said, that this presumption ought to be made, because, upon receiving information of the war, it will be his duty to return home. This position is denied. It is his duty to commit no acts of hostility against his native country, and to return to her assistance, when required to do so ; nor will any just nation, regarding the mild principles of the law of nations, require him to take arms against his native country, of refuse her permission to him to withdraw whenever he wishes to do so, unless under peculiar circumstances, which, by such removal at a critical period, might endanger the public safety. The conventional law of nations is in conformity with these principles. It is not uncommon to stipulate in treaties, that the subjects of each shall be allowed to remove with their property, or to remain unmolested. Such a stipulation does not coerce those subjects either to remove or to remain. They are left free to choose for themselves ; and when they have made their election, they claim the right of enjoying *it under the treaty; But until the election is made, r*2R4 their former character continues unchanged.	*-
173
284	SUPREME COURT	[Feb’y
The Venus.
Until this election is made, if his property found upon the high seas, engaged in the commerce of his adopted country, should be permitted, by the cruisers of the other billigerent, to pass free, under the notion that he may elect to remove, upon notice of the war, and should arrive safe, what is to be done, in case the owner of it should afterwards elect to remain where he is ? or, if captured and brought immediately to adjudication, it must, upon this doctrine, be acquitted until the election to remain is made known. In short, the point contended for would apply the doctrine of relation to cases where the party claiming the benefit of it may gain all, and can lose nothing. If he, after the capture, should find it his interest to remain where he is domiciled, his property embarked before his election was made, is safe ; and if he finds it best to return, it is safe, of course. It is safe, whether he goes or stays. This doctrine, producing such contradictory consequences, is not only unsupported by any authority, but it would violate principles long and well established in the prize courts of England, and which ought not, without strong reasons which may render them inapplicable to this country, to be disregarded by this court. The rule there, is, that the character of property, during war cannot be changed in transitu, by any act of the party, subsequent to the capture. The rule, indeed, goes further : as to the correctness of which in its greatest extension, no opinion need now be given ; but it may safely be affirmed, that this change cannot and ought not to be effected by an election of the owner and shipper of it, made subsequent to the capture, and more especially, after a knowledge of the capture is obtained by the owner. Observe the consequences which would result from it. The capture is made and known. The owner is allowed to deliberate whether it is his interest to remain a subject of his adopted, or of his native country. If the capture be made by the former, then he elects to be a subject of that country ; if by the latter, then a subject of that. Can such a privileged situation be tolerated by either belligerent ? Can any system of law be’ correct, which places an individual who adheres to one belligerent, * and, to the period of his election to remove, *contributes to increase
J her wealth, in so anomalous a situation as to be clothed with the privileges of a neutral, as to both belligerents ? This notion about a temporary state of neutrality impressed upon a subject of one of the belligerents, and the consequent exemption of his property from capture by either, until he has had notice of the war, and made his election, is altogether a novel theory, and seems, from the course of the argument, to owe its origin to a supposed hardship to which the contrary doctrine exposes him. But if the reasoning employed on this subject be correct, no such hardship can exist. For if, before the election is made, his property on the ocean is liable to capture by the cruizers of his native and deserted country, it is not only free from capture by those of his adopted country, but it is under its protection. The privilege is supposed to be equal to the disadvantage, and is therefore just. The double privilege claimed seems too unreasonable to be granted.
It will be observed, that in the foregoing opinion respecting the nature and consequences of domicil, very few cases have been referred to. It was thought best not to interrupt the chain of argument, by stopping to examine cases ; but faithfully to present the essential principles to be extracted from those which were cited at the bar, or which have otherwise come under the
174
1814]	OF THE UNITED STATES.	285
The Venus.
view of the court, and which applied to the subject. With what success this has been executed, is not for me to decide. But there are two or three cases which seem to be so applicable, and at the same time, so conclusive on the great points of this question, that it may not be improper briefly to notice them. In support of the general principles, that the national character of the owner at the time of capture, must decide his right to claim, and that a subject is condemned by it, even in the courts of his native country, without time being allowed to him to elect to remove, the following cases may be referred to.
In The Roedes Lust, 5 Rob. 247, it was decided, that the property of a resident of Demarara, shipped before hostilities of any kind had occurred between Holland and Great Britain, but which was captured, under an embargo declared by England upon Dutch property, as preparatory to war, which ensued soon after the seizure, was, by the retroactive effect of the war, applied to property so seized, to be considered *as the property * of an enemy taken in war. In this case, Sir W. Scott lays it down, L that, where property is taken in a state of hostility, the universal practice has ever been, to hold it subject to condemnation, although the claimants may have become friends and subjects, prior to the adjudication. This case is somewhat stronger than the present, in the circumstance, that in that, the state of hostility, alleged to have existed at the time of capture, was made out, by considering the subsequent declaration of war as relating back to the time of seizure under the embargo, by which reference it was decided to be a hostile embargo, and of course, tantamount to an actual state of war. But this case also proves, not only that the hostile character of the property at the time of capture, establishes the legality of it, but that no future circumstance changing the hostile character of the claimant to that of a friend or subject, can entitle him to restitution. Whether the claimant, in this case, was a neutral or a British subject, does not appear. But if the former, it will not, it is presumed, be contended, that he is, upon the principles of national law, less to be favored in the courts of the belligerent, that a subject of that nation domiciled in the country of the adverse belligerent.
Whitehills Case, however, referred to frequently in Robinson’s Reports, comes fully up to the present, because he was a British subject, who had settled but a few days in the hostile country, but before he knew or could have known of the declaration of war; yet, as he went there with an intention to settle, this, connected with his residence, short as it was, fixed his national character, and identified him with the enemy of the country he had so recently quitted. The want of notice, and of an opportunity to extricate himself from a situation to which he had so recently and so innocently exposed himself, could not prevail to protect his property against the belligerent rights of his own country, and to save it from confiscation. There are many other strong cases upon these points, which I forbear to notice particularly, from an unwillingness to swell this opinion already too long.
The sentence of the court is as follows : This cause came on to be heard on the transcript of the record, and was argued by counsel ; on consideration whereof, it is decreed and ordered, that the sentence of *the cir- r. cuit court of Massachusetts condemning the one hundred casks of 1 white lead claimed by Lenox & Maitland be, and the same is hereby affirmed
175
287	SUPREME COURT	[Feb’y
The Venus.
with costs. And that the sentence of the said circuit court as to the claim of Magee & Jones to twenty-one trunks of merchandise be, and the same is hereby reversed and annulled ; and that the said twenty-one trunks of merchandise be condemned to the captors ; and that the sentence of the said circuit court as to the ship Venus claimed by Lenox & Maitland be, and the same is hereby reversed ; and that the said ship Venus be condemned, the one-half thereof to the captors, the other half to the United States, under the order of the said circuit court. That the sentence of the said circuit court as to the claim of William Maitland to one-half of one hundred and fifty crates of earthenware, thirty-five cases and three casks of copper, nine pieces of cotton bagging and twenty and four-twentieths tons of coal, be, and the same is hereby reversed, and that the same be condemned to the captors ; and that the sentence of the said circuit court, as to the claim of Alexander McGregor to one-half of one hundred and ninety-eight packages of merchandise, as the joint property of himself and Lenox & Maitland, and of the claim of William Maitland for one-fourth of the same goods, and of the claim of Alexander McGregor to twenty-five pieces of cotton bagging, and five trunks of merchandise, be, and the same is hereby reversed and annulled, and that the same be condemned to the captors ; and that the said cause be remanded to the said circuit court for further proceedings to be had therein.
Johnson, J., declined giving an opinion.
Story, J.—I do not sit in this cause : but the great question involved in it, respecting the effect of domicil on national character, forms the leading point in many cases before the court. Those cases have been ably and fully argued, and I have listened, with great solicitude and attention, to the discussion. On so important a question, where a difference of opinion has been expressed on the bench, I do not feel at liberty to withdraw myself from the responsibility which the law imposes on me. The parties in the other cases have a right to my opinion ; and however painful it is, in the embarrassing *2881 *situation *n I stand, to declare it, I shall not shrink from what
J I deem a peremptory duty. The question is not new to me : it has been repeatedly before me in the circuit court, and has been applied sometimes to relieve and sometimes to condemn the claimant. I shall not pretend to go over the grounds of argument ; but content myself with declaring my entire concurrence in the opinion expressed by Judge Washington on this point.
Marshall, Ch. J. (dissenting d)—I entirely concur in so much of the opinion delivered in this case, as attaches a hostile character to the property of an American citizen continuing, after the declaration of war, to reside and trade in the country of the enemy ; and I subscribe implicitly to the reasoning urged in its support. But from so much of that opinion as subjects to confiscation the property of a citizen, shipped before a knowledge of the war, and which disallows the defence founded on an intention to change his domicil and to return to the United States, manifested in a sufficient manner, and within a reasonable time after knowledge of the war, although it be subsequent to the capture, I feel myself compelled to dissent. The question is undoubtedly complex and intricate. It is difficult to draw a line of discrimination
176
1814]	OF THE UNITED STATES.	288
The Venus.
which shall be at the same time precise and equitable. But the difficulty does not appear to me to be sufficient to deter courts from making the attempt.
A merchant residing abroad for commercial purposes may certainly intend to continue in the foreign country, so long as peace shall exist, provided his commercial objects shall detain him so long, but to leave it the instant war shall break out between that country and his own. This intention, it is not necessary to manifest during peace ; and when war shall commence, the belligerent cruizer may find his property on the ocean, and may capture it, before he knows that war exists. The question, whether this be enemy property or not, depends, in my judgment, not exclusively on the residence of the owner at the time, but on his residence, taken in connection with his national character as a citizen, and with his intention to continue or to discontinue his commercial domicil in the event of war. *The evi-dence of this intention will rarely, if ever, be given during peace. It *-must, therefore, be furnished, if at all, after the war shall be known to him^ and that knowledge may be preceded by the capture of his goods. It appears, to me, then, to be a case in which, as in many others, justice requires that subsequent testimony shall be received to prove a pre-existing fact. Measures taken for removal, immediately after a war, may prove a previous intention to remove, in the event of war, and may prove that the captured; property, although, primd facie, belonging to an enemy, does, in fact,.belong, to a friend. In such case, the citizen, in my opinion, has a right,, in the nature of the jus postliminii, to claim restitution.
As this question is not only decisive of many claims now depending before this court, but is also of vast importance to our merchants generally,. I may be excused for stating, at some length, the reasons on which my opinion is founded.
The whole system of decisions applicable to this subject,, rests on the law of nations as its base. It is, therefore, of some importance to inquire how far the writers on that law consider the subjects of one power, residing within the territory of another, as retaining their original character, or partaking of the character of the nation in which they reside.
Vattel, who, though not very full to this point, is more explicit and' more satisfactory on it than any other whose work has fallen into my hands, says, “the citizens are the members of the civil society ; bound to. this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives, or indigenes, are those born in the country, of parents who are citizens. Society not being able to subsist and. to perpetuate itself but by the children of the citizens, those children, naturally follow the condition of their fathers, and succeed to all their nghts. The inhabitants, as distinguished from citizens,, are strangers who> are permitted to settle and stay in the country. Bound by their residence to the society, they are subject to the laws of the state,. while they reside there, and they are obliged to defend it, because it grants *them pro- r*o9Q, tection, though they do not participate in all the rights of citizens. L They enjoy only the advantages which the laws, or custom gives them. The perpetual inhabitants are those who have received the right of perpetual residence. These are a kind of citizens of an inferior order, and are united and subject to the society, without participating in all its advantages.
8’Cbanch—12
177
290	SUPREME COURT	[Feb’y
The Venus.
The domicil is the habitation fixed in any place, with an intention of always staying there. A man does not, then, establish his domicil in any place, unless he makes sufficiently known his intention of fixing there, either tacitly or by an express declaration. However, this declaration is no reason why, if he afterwards changes his mind, he may not remove his domicil elsewhere. In this sense, he who stops, even for a long time, in a place, for the management of his affairs, has only a simple habitation there, but has no domicil.”
A domicil, then, in a sense in which this term is used by Vattel, requires not only actual residence in a foreign country, but “ an intention of always staying there.” Actual residence without this intention amounts to no more than “simple habitation.” Although this intention maybe implied, without being expressed, it ought not, I think, to be implied, to the injury of the individual, from acts entirely equivocal. If the stranger has not the power of making his residence perpetual, if circumstances, after his arrival in a country, so change, as to make his continuance there disadvantageous to himself, and his power to continue, doubtful; “ an intention always to stay there” ought not, I think, to be fixed upon him, in consequence of an unexplained residence previous to that change of circumstances. Mere residence, under particular circumstances, would seem to me, at most, to prove only an intention to remain so long as those circumstances continue the same, or -equally advantageous. This does not give a domicil. The intention which gives a domicil is an unconditional intention “ to stay always.”
• The right of the citizens or subjects of one country to remain in another, dtcnQil depends on the will of the sovereign *of that other ; and if that will be not expressed otherwise than by that general hospitality which ¿receives and affords security to strangers, it is supposed to terminate with .the relations of peace between the two countries. When war breaks out, -the subjects of one belligerent in the country of the other are considered as .enemies, and have no right to remain there. Vattel says, “ enemies con-ttinue such wherever they happen to be ; the place of abode is of no account ihere ; it is the political ties which determine the quality. While a man remains a citizen of his own country, he remains the enemy of all those with whom his nation is at war.”
It would seem to me, to require very strong evidence of an intention to become the permanent inhabitant of a foreign country, to justify a court m presuming such intention to continue, when that residence must expose the person to the inconvenience of being considered and treated as an enemy. • The intention to be inferred solely from the fact of residence, during peace, for commercial purposes, is, in my judgment, necessarily conditional, and dependent on the continuance of the relations of peace between the two countries. So far as the law of nations from considering residence in a foreign country, in time of peace, as evidence of an intention “ always to stay there,” even in time of war, that the very contrary is expressed. Vattel says, “ the sovereign declaring war can neither detain those subjects of the enemy who are within his dominions at the time of the declaration, nor their effects. They came into his country on the public faith; by permitting them to enter his territory and to continue there, he tacitly promised them liberty and security for their return. He is, therefore, to allow them a reasonable time for withdrawing with their effects; and if they stay beyond
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the time prescribed, he has a right to treat them as enemies, though as enemies disarmed.”
The stranger merely residing in a country, during peace, however long his stay, and whatever his employment, provided it be such as strangers may engage in, cannot, on the principles of national law, be considered *as incorporated into that society, so as, immediately on a declaration r*2q2 of war, to become the enemy of his own. “His property,” says L Vattel, “ is still a part of the totality of the wealth of his nation.” “ The citizen or subject of a state, who absents himself for a time, without any intention to abandon the society of which he is a member, does not lose his privilege by his absence ; he preserves his rights, and remains bound by the same obligations. Being received in a foreign country, in virtue of the natural society, the communication and commerce, which nations are obliged to cultivate with each other, he ought to be considered there as a member of his own nation, and treated as such.”
The subject of one power inhabiting the country of another, ought not to be considered as a member of the nation in which he resides, even by foreigners ; nor ought he, on the first commencement of hostilities, to be treated as an enemy by the enemies of that nation. Burlamaqui says, “ as to strangers, those whe settle in the enemy’s country, after a war is begun, of which they had previous notice, may justly be looked upon as enemies, and treated as such. .But in regard to such as went thither before the war, justice and humanity require that we should give them a reasonable time to retire ; and if they neglect that opportunity, they are accounted enemies.” If this rule be obligatory on foreign nations, much more ought it to bind that of which the individual is a member.
I think, I cannot be mistaken, when I say that, in all the views taken of this subject by the most approved writers on the law of nations, the citizen of one country, residing in another, is not considered as incorporated in that other, but is still considered as belonging to that society of which he was originally a member. And if war break out between the two nations,' he is to be permitted, and is expected, to return to his own. I do not perceive in those writers any exception with regard to merchants.
It must, however, be acknowledged, that the great extension *of r*2oQ commerce has had considerable influence on national law. Rules L have been adopted, perhaps, by general consent, principles have been engrafted on the original stalk of public law, by which merchants, while belonging politically to one society, are considered commercially as the members of another. For commercial purposes, the merchant is considered as a member of that society in which he has his domicil; and less conclusive evidence than would seem to be required in general cases, by the law of nations, has been allowed to fix the domicil for commercial purposes. But I cannot admit, that the original meaning of the term is to be entirely disregarded, or the true nature of this domicil to be overlooked. The effects of the rule ought to be regulated by the motives which are presumed to have induced its establishment, and by the convenience it was intended to promote.
The policy of commercial nations receives foreign merchants into their bosom ; and permits their own citizens to reside abroad for the purposes of trade, without injury to their rights or character as citizens. This free
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intercommunication must certainly be believed, by the nations who allow it, to be promotive of their interests. Noris this opinion ill founded. Nothing can be more obvious, than that the affairs of a commercial company will be transacted to most advantage, by being conducted, as it respects both purchase and sale, under the eye of a person interested in the result. The nation which takes an interest in the prosperity of its commerce, can feel no inclination to restrain its citizens from residence abroad, for the purposes of commerce ; nor will it hastily construe such residence into a change of national character, to the injury of the individual. It is not the policy of such a nation, nor can it be its wish, to restrain its citizens from pursuing abroad a business which tends to enrich itself. It ought not, then, to consider them as enemies, in consequence of their having engaged in such pursuit, in the country of a friend, who, before their removal, becomes an enemy.
If, indeed, it be the real intention of the citizen, permanently to change his national character, if it be his choice to remain in the country of the *904.1 enemy,.during *war, there can be no harshness, no injustice, in treat-
-* ing him as an enemy. But if, while prosecuting his business in a foreign country, he contemplates a return to his own ; if, in the prosecution of that business, he is promoting rather than counteracting the interests and policy of the country of which he is a member, it would seem to me, to be pressing the principle too far, and to be drawing conclusions which the premises will not warrant, to infer, conclusively, an intention to continue in a country which has become hostile, from a residence and trading in that country, while it was friendly ; and to punish him by the confiscation of his goods, as if he was fully convicted of that intention.
It is admitted to be a general rule, that, while the state of things remains unaltered, while the motives which carried the citizen abroad continue, while he still prosecutes a business of uncertain duration, his capacity to prosecute which is not impaired, his mercantile character is confounded with that of the 'country in which he resides, and his trade is considered as the trade of that country. It will require but a slight examination of the subject, to perceive the reason of this rule ; and that, to a certain extent, it is convenient, without being unjust.
In times of universal peace, the question of national character can arise only when some privilege or some disability is attached to it, or in cases of insurance. A particular trade may be allowed, or be prohibited, to the merchants of a particular nation, or property may be warranted to be of a particular nation. If, in such cases, the residence of the individual be received as evidence of his national mercantile character, the subjects of inquiry are simplified, the questions are reduced to a plain one, and the various complex inquires, which might otherwise arise, are avoided. There is, therefore, much convenience in adopting this principle, in such a state of things ; and it is not perceived, that any injustice can grow out of it; since the individual to whom the rule is applied, is not surprised by any new or unlooked-for event.
*2951	8°, war ex^s between two nations. Each belligerent *having
J a right to capture the property of the other, found on the ocean, each being intent on destroying the commerce of the other, and on depriving it of every cover under which it may seek to shelter itself, will
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certainly not allow the advantages of neutrality to a merchant residing in the country of his enemy. Were this permitted, the whole trade of the enemy could assume, and would assume, a neutral garb.
There is, in general, no reason for supposing that a merchant residing in a foreign country, and carrying on trade, means to withdraw from it, on its engaging in war with any other country to which he is bound by no obligation. By continuing, during war, the domicil acquired in peace, he violates no duty, offends against no generally acknowledged principle, and retains all.his rights of residence and commerce. The war, then, furnishes no motive for presuming that he is about to change his situation, and to resume his original national character.
These reasons appear to me to require the rule as a general one, and to justify its application to general cases. But they do not, in my opinion, justify its application to the case of a merchant whom war finds engaged in trade in a country which becomes the enemy of his own. His country ought not, I think, to bind him by his residence during peace ; nor to consider him as precluded by it from showing an intention that it should terminate with the relations of peace.
When it is considered, that his right to remain and prosecute that trade in which he had been engaged during peace, is forfeited ; that his duty, and most probably, his inclinations, call him home ; that he has become the enemy of the country in which he resides; that his continuance in it exposes him to many and serious inconveniences ; that his person and property are in. danger ; it is. not, I think, going too far, to say, that this change in his situation may be considered as changing his intention on the subject of residence, and as affording a presumption of intending to return.
Let it be remembered, that, according to the law of nations, domicil depends on the intention to reside permanently *in the country to r*nnfi which the individual has removed ; and that a change of this inten-tion is, at any time, allowable. If, upon grounds of general policy and general convenience, while the circumstances under which the residence commenced, continue the same, residence and employment in permanent trade be considered as evidence of an intention to continue permanently in the country, and as giving a commercial national character, may not a total change in circumstances—a loss of the capacity to carry on the trade—be received, in the absence of all conflicting proof, as presumptive evidence of an intention to leave the country, and as extricating the trade, carried on in the time of supposed peace, from the national character, so far as to protect it from the perils of war ? At any rate, do not reason and justice require that this change of circumstances should leave the question open, to be decided on such other evidence as the war must produce ?
The great object for which an American merchant fixes himelf in a foreign country, is, most generally, to carry on trade between that country and his own. In almost every case of this description, before the court, the claimant is a member of a house established in the United States ; and his business abroad is subservient to the business at home. This trade is annihilated by the war.
If, while peace subsists between the United States and Great Britain, while the American merchant possesses there all the commercial rights
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allowed to the citizens of a friendly nation, and may carry on, uninterruptedly, his trade to his own country, he is presumed, his intentions being unexplained, to intend remaining there always, and may, for general convenience, be clothed with the commercial character of the nation in which he resides, ought this presumption to be extended, by his own government, beyond the facts out of which it grows, if the interest of the individual be materially affected by that extension ? Do not reason and justice require, that we should consider his original intention as being only co-extensive with the causes which carried him to and detained him in the country, as being, in its nature, conditional, and dependent on the continuance of those causes ?
*9Qh-| *If such a person were required, on his arrival in a foreign country,
J to declare his real intentions on the subject of residence, he would, most probably, say, if he spoke honestly, “ I come for the purpose of trade : I shall remain while the situation of the two countries permits me to carry on my trade lawfully, securely, and advantageously : when that situation so changes as to deprive me of these rights, I shall return.” His intention, then, to reside in the country, his domicil in it, and consequently, his commercial character, unless he continued his trade after war, would be clearly limited by the duration of peace. It would not, I think, be unreasonable to say, that the intention, to be implied from his conduct, ought to have the same limitation.
To me, it seems, that a mere commercial domicil, acquired in time of peace, necessarily expires, at the commencement of hostilités. Domicil supposes rights incompatible with a state of war. If the foreign merchant be not compelled to abandon the country, it is not because his commercial character confers on him a legal right to stay, but because he is especially permitted to stay. If, in this, I am correct, it would seem to follow, that, if all the legal consequences of a residence in time of peace do not absolutely terminate with the peace, yet the national commercial character which that residence has attached to the individual, is not so conclusively fixed upon him, as to disqualify him from showing, that, within a reasonable time after the commencement of hostilities, he made arrangements for returning to his own country. If a residence and trading, after the war, be not indispensably necessary to give the citizen merchant, or his property, a hostile, character, yet removal, or measures showing a determination to remove, within a reasonable time after the war, may retroact upon property shipped before a knowledge of the war, and rescue that property from the hostile character attached to the property of the nation in which the individual resided.
The law of nations is a law founded on the great and immutable principles of equity and natural justice. To draw an inference against all probability, whereby, a citizen, for the purpose of confiscating his goods, is clothed, against his inclination, with the character of an enemy, in conse-*9qq1 quence of an act which, when committed, *was innocent in itself,
-* was entirely compatible with his political character as a citizen, and with the political views of his government, would seem to me to subvert those principles. The rule which, for obvious reasons, applies to the merchant, in time of peace or in time of war, the national commercial character of the country in which he resides, cannot, in my opinion, without subverting those principles, apply a hostile character to his trade carried on during
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peace so conclusively as to prevent his protecting it, by changing that character, within a reasonable time after a knowledge of the war.
My opinion, then, is, that a mere commercial domicil, acquired by an American citizen in time of peace, especially, if he be a member of an American house, and is carrying on trade auxiliary to. his trade with his own country, ought not to be considered positively as continuing longer than the state of peace. The declaration of war is a fact which removes the causes that induced his residence in the foreign country : they no longer operate upon him. When they cease, their effects ought to cease : an intention which they produced, ought not to be supposed to continue. The character of his property shipped before a knowledge of the war, ought not to be decided absolutely by his residence at the time of shipment or capture, but ought to depend on his continuing to reside and trade in the enemy country, or on his taking prompt measures for returning to his own.
This is the conclusion to which my mind would certainly be conducted, might I permit it to be guided by the lights of reason and the principles of natural justice. But it is said, that a course of adjudications has settled the law to be otherwise ; that we cannot, without overturning a magnificent system, bottomed on the broad base of national law, and of which the parts are admirably adjusted to each other, yield to the dictates of humanity on this particular question. Sir William Scott, it is argued at the bar, has, by a series of decisions, developed the principles of national law on this subject, with a perspicuity and precision which mark plainly the path we ought to tread.
*1 respect Sir William Scott, as I do every truly great man ; r*9Qq and I respect his decisions ; nor should I depart from them on light *• grounds : but it is impossible to consider them attentively, without perceiving that his mind leans strongly in favor of the captors. Residence, for example, in a belligerent country, will condemn the share of a neutral in a house, trading in a neutral country ; but residence in a neutral country will not protect the share of a belligerent or neutral in a commercial house established in a belligerent country. In a great maritime country, depending on its navy for its glory and its safety, the national bias is, perhaps, so entirely in this direction, that the judge, without being conscious of the fact, must feel its influence. However this may be, it is a fact of which I am fully convinced ; and on this account, it appears to me, to be the more proper to investigate rigidly the principles on which his decisions have been made, and not to extend them where such extension may produce injustice. While I make this observation, it would betray a want of candor, not to accompany it with the acknowledgment, that I perceive in the opinions of this eminent judge, no disposition to press this principle with peculiar severity against neutrals. He has certainly not mitigated it when applying it to British subjects.
With'this impression respecting the general character of British admiralty decisions, I proceed to examine them so far as they bear on the question of domicil. The case of The Vigilantia does not itself involve the point. But in delivering his opinion, the judge cited two cases of capture which have been quoted and relied. on at bar. In each of these, the share of the partner residing in the neutral country, was restored, and that of the
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partner residing in the belligerent country was condemned. But these decisions applied to a trade continued to be carried on during war.
In a subsequent case, the share of the partner residing in the neutral country also was condemned ; and the lords commissioners said, that the principle on which restitution was decreed in each of the first-mentioned *onni cases, was, “ that they were merely at the commencement *of a war.” J They said, that “ a person carrying on trade habitually in the country of the enemy, though not resident there, should have time to withdraw himself from that commerce ; that it would press too heavily on neutrals, to say, that, immediately, on the first breaking out of a war, their goods would become subject to confiscation.”
On these cases, it is to be observed, that although the first two happened at the commencement of the war, yet they happened during a war ; and the partners whose interest was condemned, do not appear to have discontinued their residence and trading in the country of the enemy, after war had taken place. The declaration “ that it would press too heavily on neutrals, to say, that, immediately on the first breaking out of a war, their goods would become subject to confiscation,” though applied to a neutral not residing in the belligerent country, clearly discriminates, in a case of capture, between the rights of parties, at the commencement of a war, and at a subsequent period. But it is sufficient to say, that neither the case itself, nor the cases and opinions cited in it, apply directly to the question before this court.
In the case of The Harmony, the property of Mr. Murray, an American citizen, residing in France, was condemned on account of that residence. But Mr. Murray had removed to France, during the war, and had continued there for four years. The scope of the argument of Sir William Scott goes to show, that the single circumstance of residence in the enemy country, if not intended to be permanent, will not give the enemy character to the property of such resident, captured in a trade between his own country and that of the enemy. It is material, that the conduct of Mr. Murray, subsequent to the capture, had great influence in determining the fate of his property. Had he returned to the United States, immediately after that event, I do not hazard much, in saying that restitution would have been decreed.
In the case of The Indian Chief, Mr. Johnson, an American citizen domiciliated in England, had engaged *in a mercantile enterprise to J the British East Indies—a trade allowed to an American citizen, but prohibited to a British subject. On its return, the vessel came into Cowes, and was seized for being concerned in illicit trade. Mr. Johnson had then left England for the United States. He was considered as not being a British subject, at the time of capture, and restitution was decreed. In delivering his opinion in this case, Sir William Scott said, “ Taking it to be clear, that the national character of Mr. Johnson, as a British merchant, was founded in residence only, that it was acquired by residence, and rested on that circumstance alone, it must be held, that, from the moment he turns his back on the country where he has resided, on his way to his own country, he was in the act of resuming his original character, and is to be considered as an American. The character that is gained by residence, ceases by nonresidence. It is an adventitious character, that no longer adheres to him, from the moment that he puts himself in motion, bondfide, to quit thé country
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sine animo revertendi.” This case undoubtedly proves, affirmatively, that the national character gained by residence ceases with that residence ; but I cannot admit it, to prove, negatively, that this national character can be laid down by no other me;' ns. I cannot, for instance, admit that an American citizen, who had gained a domicil in England, during peace, and was desirous of returning home, on the breaking out of war, but was detained by force, could, under the authority of this opinion, be treated as a British trader, with respect to his property embarked before a knowledge of the war.
In the case of La Virginie, the property of a Mr. Lapierre, who was probably naturalized in the United States, but who had returned to St. Domingo, and had shipped the produce of that island to France, was condemned. But he was considered as a Frenchman, was residing at the time in a French colony, and was engaged in a trade between that colony and the mother country. The case, the judge observed, might have been otherwise decided, had the shipment been made to the United States.
*In the case of The Jonge Klassina, Mr. Ravie had a license to r* _ make certain importations, as a British subject. He had a house in *■ Amsterdam, went there in person, during the war, and made the shipment, under his own inspection and control. It was determined, that, in this transaction, he acted in his character as a Dutch merchant, and was not protected by his license. This was a trading during war.
In the case of The Citto, the property of Mr. Bowden, a British subject residing in Holland, was condemned. It appeared, that he had settled in Amsterdam, where he had resided, carrying on trade, for six years. In 1795, when the French troops took possession of that country, he left it and settled in Guernsey. The Citto was a Danish vessel, captured in April 1796, on a voyage from a Spanish port to Guernsey, where Mr. Bowden then resided. In June 1796, after the capture of the Citto, he returned to Holland. In argument, it was contended, that it appeared, that British subjects might reside in Holland, without forfeiting their British character, from the proclamation of the 3d of September 1796, which directs the landing of goods, imported under that order ixito the United Provinces, to be certified by British merchants resident there. The judge was desirous of knowing the nature of Mr Bowden’s residence in Holland—whether he had confined himself to the object of withdrawing his property, or had been engaged in the general traffic of the place. If the former, “ he may,” said the judge, “ be entitled to restitution ; more especially adverting to ’ the order in council, which is certainly so worded as not to be very easy to be applied.” The cause stood for further proof. It is plain, that in this opinion, the residence of the claimant at the time of capture was not considered as conclusive. Had it been so, restitution must have been decreed, because Mr. Bowden was a British subject, and, at that time, resided in Guernsey. It is equally apparent, that, had his subsequent residence in the enemy country been for the sole purpose of withdrawing his property, the law was not understood to forbid restitution. *The language of Sir William r*303 Scott certainly ascribes considerable influence to the proclamation, *• but does not rest the right of the claimant altogether on that fact.
On the 17th of March 1800, an affidavit of Mr. Bowden, made the 6th of August 1799, was produced, in which he stated his residence in Holland, 185
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previous to the invasion by the French. That he quitted Holland, and landed in England, the 20th of January 1795, whence he proceeded to Guernsey, where he resided with his family. That in the month of June 1796, he was under the absolute necessity of returning to Holland, for the purpose of recovering debts due and effects belonging to the partnership, his partner remaining in Guernsey. The affidavit then proceeded to state many instances of his attachment to his own government, and concluded with averring, that he was still under the necessity of remaining in Holland, for the purpose of recoving part of the said debts and effects, which would be impossible, were he to leave the country ; but that it was his intention to return to his native country, so soon as his affairs would permit, where his mother and his relations reside. The court observed, that it appeared, from the affidavit, that Mr. Bowden was, at that time, in Holland ; and added, “it would be a strange act of injustice, if while we are condemning the goods of persons of all nations resident in Holland, we were to restore the goods of native British subjects resident there. An Englishman residing and trading in Holland, is just as much a Dutch merchant, as a Swede or a Dane would be.”
This case was decided in 1800. Mr. Bowden had returned to Holland in 1796, during the war, and had continued in the country of the enemy. It is not denied, that he continued his trade, and the fact that he did continue it, is fairly to be inferred, not only from his omitting to aver the contrary, but from the language of Sir William Scott. “An Englishman residing and trading in Holland,” says that judge, “ is just as much a Dutch merchant, as a Swede or a Dane would be.” The case of Mr. Bowden, then, is the case of a British subject, who continued to reside and trade in the enemy *^041 country, four years after the commencement of hostilities. His
J *property must have been condemned on one of two principles. Either the judge must have considered his residence in Guernsey, from January 1795, to June 1796, as a temporary interruption of his permanent residence in Holland, and not as a change of domicil, since he returned to that country, and continued in it, as a trader, to the rendition of the final sentence ; or he must have decided, that although Mr. Bowden remained and intended to remain in fact a British subject, yet the permanent national commercial character which he acquired after this capture, retroacted on a trade which, at the time of capture was entirely British, and subjected the property to confiscation. On whichsoever of these principles the case was decided, it is clear, that the hostile character attached to the property of Mr. Bowden, in consequence of his residing and trading in the country of the enemy during the war. This case is, I think, materially variant from one in which the residence and trading took place during peace, and the capture was made before a change of residence could be conveniently effected.
The Diana is also a case of considerable interest, which contains doctrines entitled to attentive consideration. During the war between Great Britain and Holland, which commenced in 1795, the island of Demarara surrendered to the British arms. By the treaty of Amiens, it was restored to the Dutch. That treaty contained an article allowing the inhabitants, of whatever country they might be, a term of three years, to be computed from the notification of the treaty, for the purpose of disposing of their property acquired and possessed before or during the war, in which term they may 186
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have the full exercise of their religion and enjoyment of their property. Previous to the declaration of war against Holland, in 1803, the Diana and several other vessels, loaded with colonial produce, were captured on a voyage from Demarara to Holland. Immediately after the declaration of war, and before the expiration of three years from the notification of the treaty of Amiens, Demarara again surrendered to Great Britain. Claims to the captured *property were filed by original British subjects, inhabitants ris of Demarara, some of whom had settled in ths colony, while it was ■-in possession of Great Britain, others before that event. The trial came on, after the island had again become a British colony.
Sir William Scott decreed restitution to those British subjects who had settled in the colony, while in British possession, but condemned the property of those who had settled there, before that time. He held, that their settling in Demarara, while belonging to Great Britain, afforded a presumption of their intending to return, if the island should be transferred to a foreign power ; which presumption, recognised in the treaty, relieved those claimants from the necessity of proving such intention. He thought it highly reasonable, that they should be admitted to their jus postliminii, and be held entitled to the protection of British subjects. But the property of those claimants who had settled before it came to the possession of Great Britain, was condemned. “ Having settled without any faith in British possession, it cannot be supposed,” he said, “ that they would have relinquished their residence, because that possession had ceased. They had passed from one sovereignty to another with indifference ; and if they may be supposed to have looked again to a connection with this country, they must have viewed it as a circumstance that was in no degree likely to affect their intention of continuing there.” “ On the situation of persons settled there, previous to the time of British possession, I feel myself,” said the judge, “ obliged to pronounce that they must be considered in the same light as persons resident in Amsterdam. It must be understood, however, that if there were among these, any who have been actually removing, and that fact is properly ascertained, their goods may be capable of restitution^ All that I mean to express is, that there must be evidence of an intention to remove, on the part of those who settled prior to British possession, the presumption not being in their favor.” This having been a hostile seizure, though made before the declaration of war, the property is held r*qnfi equally *liable to condemnation as if captured the instant of that *■ declaration.
So much of the case as relates to those claimants who had settled during British possession, proves that other circumstances than an actual getting into motion for the purpose of returning to his own country, may create a presumption of intending to return ; and may put off that hostile commercial character which a British subject residing and trading in the country of an enemy, is admitted to acquire. The settlement having been made in a country which, at the time, was in possession of Great Britain, though held only by the right of conquest—a tenure known to be extremely precarious, and rarely to continue longer than the war in which the acquisition is made, is sufficient to create this presumption ; but the case does not declare negatively, that no other circumstances would be sufficient.
I am aware, that the part of the case which applies to claimants who had
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settled previous to British possession, will, at first view, appear to have a strong bearing on the question before the court. The shipment was in time of peace, and the seizure was made before the declaration of war. The trade was one in which a British subject, in time of peace, might lawfully engage. However strong his intention might be, to return to his native country, in the event of war, he could not be expected to manifest that intention, before the actual existence of war. The re-conquest of the island followed the declaration of war so speedily, as scarcely to leave time for putting in execution the resolution to return, had one been formed. Taking these circumstances into view, the condemnation would seem to be one of extreme severity. Yet, even this case, amitting the decision to be perfectly correct, does not, I think, when accurately examined, go so far as to justify a condemnation under such circumstances as belong to some of the cases at bar. The island having surrendered, during war, such of its inhabitants as were originally British subjects were not allowed to derive, from this re-annexation to the dominions of Great Britain, the advantages to which a voluntary return to their own country, of the same *date, would have entitled them.
-* They were considered as if they had been “ residents of Amsterdam.”
But Sir William Scott observes, that “if there are among these any who have been actually removing, and that fact is properly ascertained, their goods may be capable of restitution.” “ Actually removing”—when? Not, surely, before the seizure ; for that was made in time of peace. Not before the declaration of war, when the original seizure was converted into a belligerent capture ; for until that declaration was known, a person whose intention to remain or return was dependent on peace or war, would not be “ actually removing.” On every principle of equity, then, the time to which these expressions refer, must be the surrender of Demarara, or a reasonable time after the declaration of war was known there. The one period or the other would be subsequent to that event which was deemed equivalent to capture. It is not unworthy of remark, that Sir William Scott adds explanatory words, which qualify and control the words “ actually removing,” and show the sense in which he used them. “ All,” says the judge, “ that I mean to express is, that there must be evidence of an intention to remove, on the part of those who settled prior to British possession, the presumption not being in their favor.” It would, then, I think, be rejecting a part, and a material part, of the opinion, to say, that an intention to remove, clearly proved, though not accompanied by the fact of removal, would have been deemed insufficient to support the claim for restitution.
Were there no other circumstances of real importance in this case—did it rest solely on the sentiments expressed by the judge, unconnected with those circumstances, I should certainly consider it as leaving open to the claimants before this court, the right of proving an intention to return, within a reasonable time after the declaration of war, by other overt acts than an actual removal. But there are other circumstances which I cannot *onR-i *deem immaterial ; and as the opinions of a judge are always to be
J taken with reference to the particular case in which they are delivered, I must consider these expressions in connection with the whole case.
The probability is, that the claimants were not merely British merchants. Though the fact is not expressly stated, there is some reason to believe, that 188
1814]	OF THE UNITED STATES.	308
The Venus.
they had become proprietors of the soil, and were completely incorporated with the Dutch colonists. They are not denominated merchants ; they are spoken of, through the case, not as residents, but as settlers. “ They had passed,” said Sir William Scott, “from one sovereignty to another, with indifference.” This mode of expression appears to me to indicate a more permanent interest in the country—a more intimate connection with it than is acquired by a merchant removing to a foreign country, and residing there in time of peace, for the sole purpose of trade. And in another of the same class of cases, it is said, that, previous to the last war, the principal plantations of the island were in possession of British planters, from the other British islands. The voyage, too, in making which the Diana was captured, was a direct voyage between the colony and the mother country. The trade was completely Dutch ; and the property of any neutral, wherever residing, if captured in such a voyage, during war, would be condemned. But it is still more material, that those who settled in Demarara, before British possession, must have settled during the war which was terminated by the treaty of Amiens ; or, if they settled in time of peace, must have continued there, while the colony was Dutch, and while Holland was at war with Great Britain. Whichever the fact might be, whether they had settled in an enemy country during war, or had continued, through the war, a settlement made in time of peace, they had demonstrated that war made no change in their residence. In their case, then, it might be correctly said, “ that war created no presumption of an intention to return ”—“ that they passed from one sovereignty to another with indifference.” *1 cannot consider claims, under these r*o0n circumstances, as being in the same equity with claims made by per- L sons who had removed into a foreign country, in time of peace, for the sole purpose of trade, and whose trade would be annihilated by war.
The case of The Boedes Dust differs from The Diana only in this : the claimants are not alleged to have been originally British subjects. Restitution was asked, because the property did not belong to an enemy, at the time of shipment, nor at the time of seizure, nor at the time of adjudication. These grounds were all declared to be insufficient: the original seizure was provisionally hostile ; and the declaration of war consummated the right to condemn, and vested the property in the crown, as enemy property. The subsequent change in the character of the claimants, who became British subjects, by the surrender of Demarara, could not divest it. “ Where property is taken in a state of hostility,” said Sir William Scott, “the universal practice has ever been, to hold it subject to condemnation, although the claimants may have become friends and' subjects, prior to adjudication.” “With as little effect,” he added, “can it be contended, that a postliminium can be attributed to these parties. Here is no return to the original character, on which only &juspostliminii can be raised. The original character, at the time of seizure, and immediately prior to the hostility which has intervened, was Dutch. The present character, which the events of war have produced, is that of British subjects ; and although the British subject might, under circumstances acquire the jus postliminii, upon the resumption of his native character, it never can be considered, that the same privilege accrues upon the acquisition of a character totally new and foreign.” This opinion is certainly not decisive ; but it appears to me rather to favor than oppose the idea, that a merchant residing abroad, and taking measures to return
189
309	SUPREME COURT	[Feb’y
The Venus.
on the breaking out of war, may entitle himself to the jus postliminii, with respect to property shipped before a knowledge of the war.
*qin-i The President was captured on a voyage from the *Cape of Good
-1 Hope to Europe. Mr. Elmslie, the claimant, was born a British subject, but claimed as a citizen of the United States. He had removed to the Cape of Good Hope, during the preceding war, and still resided there. The property was condemned. In delivering his opinion, Sir William Scott, observed, “ It is said, the claimant is entitled to the benefit of an intention of removing to Philadelphia, in a few months. A mere intention to remove, has never been held sufficient, without some overt act, being merely an intention residing secretly and undistinguishably. in the breast of the party, and liable to be revoked every hour. The expressions of the letter in which this intention is said to be found, are, I observe, very weak and general, of an intention merely in futuro. Were they even much stronger than they are, they would not be sufficient. Something more than mere verbal declaration, some solid fact, showing that the party is in the act of withdrawing, has always been held necessary in such cases.”
It is to be held in mind, that this opinion is delivered in the case of a person who had fixed his residence in an enemy country, during war, and that he claimed to be the subject of a neutral state. For both these reasons, the war afforded no presumption of his intending to return, either to his native or adopted country. To the vague expression of an intention to return, at some future indefinite time, no influence can be ascribed. When the judge says that “something more than mere verbal declaration, some solid fact, showing that the party is in the act of withdrawing, has always been held necessary in such cases,” I do not understand him to say, that the person must have put himself in personal motion to return, must have commenced his voyage homeward, in order to be considered as in “ the act of withdrawing.” Many other overt acts, as selling a commercial establishment, stopping business, making preparations to return, accompanied by declarations of the intent, and not opposed by other circumstances, may, in my opinion, be considered as acts of withdrawing.
In the case of The Ocean, Sir William Scott said, “ This claim relates eqi-il to the situation of British subjects, settled *in a foreign state, in time
-* of amity, and taking early measures to withdraw themselves, on the breaking out of war. The affidavit of claim states, that this gentleman had been settled, as a partner in a house of trade, in Holland, but that he had made arrangements for the dissolution of the partnership, and was only prevented from removing personally, by the violent detention of all British subjects, who happened to be within the territories of the enemy, at the breaking out of the war. It would, I think, under these circumstances, be going further than the principle of law requires, to conclude this person, by his former occupation, and by his present constrained residence in France, so as not to admit him to have taken himself out of the effect of supervening hostilities, by the means which he had used for his removal.”
If other means for removal were taken, than arrangements for the dissolution of the partnership, they are not stated ; and it is fairly to be presumed, that these arrangements were the most prominent of them, since that fact is alone selected and particularly relied upon. In his statement of the case, the reporter says, that the claimant had actually made his escape
190
1814]	OF THE UNITED STATES.	311
The Venus.
and returned to England, in July 1803 (the trial was in January 1804) ; but this must be a mistake, or is a fact not adverted to by the judge, since he says, in his opinion, that the claimant is, at the time, “a constrained resident of France.”
I shall notice two other cases which are frequently cited, though I have seen no full report of either of them. The first is the case of Mr. Curtissos. This gentleman, who was a British subject, had gone to Surinam in 1766, and from thence to St. Eustatius, where he remained until 1776. He then went to Holland, to settle his accounts, and with an intention, “as was said,” of returning afterwards to England to take up his final residence. In December 1780, orders of reprisal were issued by England against Holland. On the first of January 1781, The Snelle Zeylder was captured, and, on the 5th of March and 10th of April 1781, the vessel and her cargo were condemned as Dutch property. On *the 27th of April 1781, Mr. Curtissos returned to England : and on an appeal, the sentence of condemnation was reversed by the lords of appeals, and restitution decreed. Other claims of Mr. Curtissos were brought before the court of admiralty; and, on a full disclosure of these circumstances, restitution was decreed, before the decree of the lords in the case of The Snelle Zeylder was pronounced. (3 Rob. 25.) The principle of this decree is said to be, that Mr. Curtissos was in itinere, and had put himself in motion, and was in pursuit of his original British character.
I do not mean to find fault with this decision ; but certainly it presents some strong points more unfavorable to the claimant than will be found in some of the cases now before this Court. Mr. Curtissos had obtained a commercial domicil in the country of the enemy. At the time of the sailing, capture and condemnation of the Snelle Zeylder, he still resided in the country of the enemy. But it is said, he was in itinere ; he was in motion in pursuit of his original British character. What was this journey, he is said to have been performing in pursuit of his original character ? He had passed from one part of the dominions of the United Provinces to another. He had moved his residence from St. Eustatius to Holland, where he remained from the year 1776 until 1781—a time of sufficient duration for the acquisition of a domicil, had he not previously acquired it. This change of residence, to make the most of it, is an act too equivocal in itself to afford a strong presumption that it was made for the purpose of returning to England. Had his stay in Holland even been short, a colonial merchant trading to the mother country, may so frequently be carried there on the business of his trade, that the fact can afford but weak evidence 'of an intention to discontinue that trade: but an interval of between four and five years elapsed between his arrival in Holland and his departure from that country, during which time he is not stated to have suspended his commercial pursuits, or to have made any arrangements, such as transferring his property to England, or making an establishment there, which might indicate, r*«,« *by overt acts, the intention of returning to his native country. This *-journey to Holland, connected with this long residence, would seem to me, to be made as a Dutch merchant, for the purpose of establishing himself there, rather than as preparatory to his return to England. But it was said, that he intended to return to England. How was this intention shown ? If not by his journey to Holland and his long residence there, it was only shown by
191
313
SUPREME COURT
[Feb’y
The Venus.
his being employed in the settlement of his accounts, while a merchant at St. Eustatius, a business in which he would of course engage, whatever his future objects might be. This equivocal act does not appear to have been explained, otherwise than by his own declarations ; nor does it appear that these declarations were made previous to the capture. But could I even admit, that the journey from St. Eustatius to Holland, was made with a view of passing ultimately from Holland to England, yet the intention was not to be immediately executed. The time of carrying it into effect, was remote and uncertain ; subject to so many casualties that, had not the war supervened, it might never have been carried into effect. But laying aside these circumstances, the case proves only, that being in itinere, in pursuit of the native character, divests the enemy character required by residence and trading; it is not insinuated, that this character can be divested by no other means.
Jifr. Whitehill’s case, though one of great severity, does not, I think, overturn the principle I am endeavoring to sustain. He went to St. Eustatius, but a few days before Admiral Rodney and the British forces made their appearance before that place. But it was proved, that he went for the purpose of making a permanent settlement there ; no intention to return appears to have been alleged. The recency of his establishment seems to have been the point on which his claim rested. This case, in principle, bears on that before the court, so far only as it proves that war does not, under all circumstances, necessarily furnish a presumption, that the foreigner residing in the enemy country, intends to return to his own. The circumstances of this **'>14.1 *case, 80 far as we understand them, were opposed to the presump-' J tion that war could affect Mr. Whitehill’s residence. War actually existed at the time of his removal ; and had that fact been known to him, there would have been no hardship in his case. He would have voluntarily taken upon himself the enemy character, at the same time that he took upon himself the Dutch character. There is reason to believe that the court considered him in equal fault with a person removing to a country known to be hostile. St. Eustatius was deeply engaged in the American trade, which, from the character of the contest, was, at that time, considered by England as cause of war, and was the fact which drew on that island the vengeance of Britain. Mr Whitehill could have fixed himself there only for the purpose of prosecuting that trade. “ He went,” says Sir William Scott, “ to a place which had rendered itself particularly obnoxious by its conduct in that war.” This was certainly a. circumstance which could not be disregarded, in deciding on the probability of his intending to remain in the country, in the event of war.
These are the cases which appear to me to apply most strongly to the question before this court. No one of them decides, in terms, that the property of a British subject, residing abroad, in time of amity, which was shipped, before a knowledge of war, and captured by a British cruizer, shall depend, conclusively, on the residence of the claimant at the time of capture, or on his having, at that time, put himself in motion to change his residence. In no case which I have had an opportunity of inspecting, have I seen a dictum to this effect. The cases certainly require an intention, on the part of the subject residing and trading abroad, to return to his own country, and that this intention should be manifested by overt acts; but 192
1814]	OF THE UNITED STATES.	314
The Venus.
they do not, according to my understanding of them, prescribe any particular overt act, as being exclusively admissible ; nor do they render it indispensable that the overt act should, in all cases, precede the capture. If a British subject, residing abroad for commercial purposes, takes decided measures, on the breaking out of war, for returning to his native country, and especially, if he should actually return, his claim for the restitution of property, shipped before his knowledge of *the war, would, I think, be favorably received in a British court of admiralty, although his *• ° actual return, or the measures proving his intention to return, were subsequent to the capture. Thus understanding the English authorities, I do not consider them as opposing the principle I have laid down.
An American citizen, having merely a commercial domicil in a foreign country, is not, I think, under the British authorities, concluded, by his residence and trading in time of peace, from averring and proving an intention to change his domicil on the breaking out of war, dr from availing himself of that proof in a court of admiralty. The intrinsic evidence arising from the change in his situation, produced by war, renders it extremely probable, that in this new state of things, he must intend to return home, and will aid in the construction of any overt act by which such intention is manifested. Dissolution of partnership, discontinuance of trade in the enemy country, a settlement of accounts, and other arrangements obviously preparatory to a change of residence, are, in my opinion, such overt acts as may, under circumstances showing them to be made in good faith, entitle the claimant to restitution.
I do not perceive the mischief or inconvenience that can result from the establishment of this principle. Its operation is confined to property shipped before a knowledge of the war. For if shipped afterwards, it is clearly liable to condemnation, unless it be protected by the principle that it is merely a withdrawing of funds. Being confined to shipments made before a knowledge of the war, the evidence of an intention to change or continue a residence in the country of the enemy, must be speedily given. A continuance of trade, after the war, unless, perhaps, under very special circumstances, and for the mere purpose of closing transactions already commenced, would fix the national character and the domicil previously acquired. An immediate discontinuance of trade, and arrangements for removing, followed by actual removal, within a reasonable time, unless detained by causes which might sufficiently account for not removing, would fix the intention to change the domicil, and show that the intention to return had never been abandoned ; that the intention to remain always had never *been formed. It is a case, in which, if in any that can be imagined, justice requires that the citizen, having entirely recov- *-	6
ered his national character by his own act, and by an act which shows that he never intended to part with it finally, should, by a species of the jus postliminii, be allowed to aver the existence of that character, at the instant of capture. In the establishment of such a principle, I repeat, I can perceive no danger. In its rejection, I think, I perceive much injustice. An individual whose residence abroad is certainly innocent and lawful, pernaps, advantageous to his country, who never intended that residence to be permanent, or to continue in time of war, finds himself, against his will, clothed with the character of an enemy, so conclusively, that not even a
8 Cbanch—13	193
31S	SUPREME COURT	[Feb’y
The Venus.
return to his native country can rescue from that character and from confiscation, property shipped in the time of real or supposed peace. My sense of justice revolts from such a principle.
In applying this opinion to the claimants before the court, I should be regulated by their conduct, after a knowledge of the war. If they continued their residence and trade, after that knowledge, at any rate, after knowing that the repeal of the orders in council was not immediately followed by peace, their claim to restitution would be clearly unsustainable. If they took immediate measures for returning to this country, and have since actually returned, or have assigned sufficient reasons for not returning, their property, I think, may be capable of restitution. Some of the claimants would come within one description, some within the other. It would, • under the opinion given by the court, be equally tedious and useless- to go through their cases.
My reasoning has been applied entirely to the case of native Americans. This course has been pursued for two reasons. It presents the argument in what I think its true light; and the sentence of condemnation makes no discrimination between native or other citizens. The claimants are natives of that country with which we are at war, who have been naturalized in the United States. It is imposible to deny, that many of the strongest arguments urged to prove the probability that war must determine the native American citizen to abandon *the country of the enemy J and return home, are inapplicable, or apply but feebly, to citizens of this description. Yet, I think, it is not for the United States, in such a case as this, to discriminate between them. I will not pretend to say, what distinctions may or may not exist between these two classes of citizens, in a contest of a different description. But in a contest between the United States and the'naturalized citizen, in a claim set up by the United States to confiscate his property, he may, I think, protect himself by any defence which would protect a native American. In the prosecution of such a claim, the United States are, I think, if I may be excused from borrowing from the common law a term peculiarly appropriate, estopped from saying that they have not placed this adopted son on a level with those born in their family.
Livingston, J., concurred in the opinion with the Chief Justice.
194
1814]
OF THE UNITED STATES.
317
The Merrimack.
Prize of war.
Goods purchased by British merchants, before the war between the United States and Great Britain, in pursuance of orders from American citizens, shipped to the agent of the British merchants, in the United States, also an American citizen, “ on account and risk of an American citizen,” and no circumstances of fraud or unfairness appearing in the transaction—were vested in the American citizens at the time of the shipment, and are not liable to condemnation, although the vessel sailed from England, after the declaration of war was known there. Restitution.
But if goods be purchased as above, though the accompanying invoices, bills of lading, and letters be addressed by the British consignors to the American citizens for whom the purchase was made, and all concur to show the property to be in them, yet, if these documents are enclosed in a letter from the consignors to their agent in the United States, though an American citizen, directing him not to deliver the goods, in case of the existence of certain circumstances, nor until he should have received payment from the consignees in cash—the property in the said goods continued in the British consignors, at the time of capture. Condemnation,1
Goods by the same ship, purchased as above, and consigned to the agent of the consignors, being an American citizen, in whose name also the bill of lading was made out, but the bill of parcels and invoice in the name of the American merchants for whom the purchase was made; the shipment also being expressed to be on their account, though the goods are spoken of in the letter of the consignors as British property—vested in the American merchants at the time of shipment. The circumstance that the goods continue, during the whole voyage, at the risk of the shippers is immaterial. Restitution.1 2
This was an appeal from the decree of the Circuit Court for the district of Maryland. The following are the material facts of the case :
The ship Merrimack, owned by citizens of the United States, sailed from Liverpool for Baltimore, a few days after the declaration of war by the United States against Great Britain, was known in that country, having on board a cargo of goods, shipped by British subjects, and consigned to citizens of the United States. On the 25th of October 1812, she was captured, in the Chesapeake bay, between Annapolis and Baltimore, by the private armed vessel Rossie, Joshua Barney, commander.
The goods, being libelled as prize in the district *court of Maryland, were severally claimed by sundry citizens of the United States. L 18 These several claims, and the circumstances connected with them, respectively, were thus stated by Marshall, Ch. J., in delivering the opinion of the court :
1.	William & Joseph Wilkins, merchants, of Baltimore, claimed the goods contained in eleven cases and one bale, marked W. J. W. These goods were made up for them, in pursuance of their orders, before the war was known in Great Britain, by a manufacturing company, one member of which, Thomas Leich, resided in Leicester, in Great Britain, and the other, Edward Harris, was 'an American citizen, residing in the United States. The bill of parcels was in the name of Messrs. William & Joseph Wilkins ; this paper also served for an invoice, and there was no other on board for these goods. The bill of lading was in the name of Edward Harris, who was the consignee. The goods were accompanied by a letter from Thomas Leich to Edward Harris, dated Leicester, the 29th of July 1812, in which he says, “ With this you will receive bill of lading of eleven cases of worsted and
1 The St. Joze Indiano, 1 Wheat. 268.
2 The Mary and Susan, 1 Wheat. 25; The Sally Magee, 3 Wall. 451.
195
âis
SUPREME COURT
[Feb’y
The Merrimack.
cotton hosiery, for Messrs. W. & J. Wilkins, Baltimore, and with insurance to 892Z. 5s. It is a large sum, but, from what I can learn, they are very respectable. Indeed, Mr. Brown of the house of Chancellor & Co. came with him, and seemed almost offended, that did not send the cotton hose he ordered before, and said, he would guarantee the amount of the worsted goods, therefore, must have offended him, if did not comply. Have not sent but about half the cotton goods they ordered,” &c., “ informed them, that we thought it necessary to secure our property, to ship all to you, as you could prove that they were American property by making affidavit they are bond fide your property. As out orders in council are repealed, hope your *qi q] government will be amicably inclined as well, and *that trade will be
-* on regular footing again, but for fear there should be some other points in dispute, I shall send you, and our friends, through your hands, all the goods prepared for your market which you’ll perceive is very large.” “ Hope you will approve of my sending all, and as there may have been some alterations in some of your friends, shipping them to you gives the power of keeping back to you.” There was also on board, a letter dated Leicester, 22d July 1.812, signed Harris, Leich & Co., and addressed to Messrs. Wm. & Joseph Wilkins, merchants of Baltimore, in which they say, “The repeal of the orders in council having been agreed on by our government, we have availed ourselves of the opportunity of sending the greater part of your spring and fall orders,” &c. “ As we are not certain, that your government will protect British property, we have thought it right to ship all ours, under cover to Mr. Harris, who can claim as his own bond fide property, and he, being a citizen of the United States, thought proper to use every precaution, having received some unpleasant accounts about your government having agreed on war with this country, which we hope will not be the case.
2.	McKean & Woodland, citizens of the United States, claim sundry parcels of goods, part of the same cargo, as their property. These goods were purchased by Baily, Eaton & Brown, merchants, of Sheffield, in pursuance of orders from the claimants. They were shipped to Robert Holladay, also an American citizen. The bill of lading was to Robert Holladay, “ on account and risk of an American citizen.” The invoice was also headed to Robert Holladay. A letter from Baily, Eaton & Brown, to Samuel McKean, dated 11th July 1812, says, “A few days ago, we received a letter from Mr. Rogerson, of New York, informing us that the partnership of Messrs. McKean & Woodland was dissolved, but he does not say, whether you or Mr. Woodland continue the business, or whether both of you decline it.
We have purchased about 3000Z. sterling of goods, by order of *the
J late firm, and on their account, most of which have been purchased and paid for by us, from fifteen to eighteen months ago, and have been on our hands, waiting for shipment. We have this day given orders to our shipper at Liverpool, to put them on board a good American vessel, sailing for ye ur port, with a British license ; but from the uncertainty we are m respecting the particulars of your dissolution of partnership, and, in fact, not knowing ■whether to consign them to you or Mr. Woodland, we have finally concluded to consign them to Mr. Holladay, with whom you will be pleased to make the necessary arrangements respecting them.” “We have addressed the invoice to Mr. Holladay to your care ; and directly on receiving it, if he should not be in Baltimore, you, will please advise him of its
196
1814]	OF THE UNITED STATES.	320
The Merrimack.
arrival.” The residue of the letter contains their reasons for hoping that Mr. McKean will not insist on the usual credit, but will remit immediately on receiving the goods. This request is founded on their having been so long in advance for the purchase of them. Messrs. Baily, Eaton & Brown addressed a letter to Mr. Holladay, dated the 10th of July 1812, in which they say, “ Inclosed you will receive invoices of sundry goods for Messrs. McKean & Woodland, which complete their orders.” They then assign the same reason for shipping the goods to Mr. Holladay, that is given in their letter to Mr. McKean ; and after directing him to arrange with Mr. McKean, add, “We cannot view this consignment at all in the light of an intercepted shipment, coming within the meaning of the articles of agreement between you and us.” This letter also contained a proposition for immediate remittance, founded on the time which had elapsed since the goods were purchased. This proposition, they say, is made to all their friends in the United States, and they hope none will refuse to accede to it. “ But,” they add, “in thus acting, we have left the matter to the free and unbiassed will of our friends, and they are certainly upon honor.”
3.	Messrs. Kimmel & Albert, merchants, of Baltimore, claimed seven packages of goods on board the *Merrimack, which were purchased, ^391 in pursuance of their orders, by Baily, Eaton & Baily. The invoice, 1 bill of lading and letters, addressed (one by the consignors and the other by the shipper, who was their agent) to Messrs. Kimmel & Albert, concur in showing property in the claimants. But all these documents and letters are inclosed in a letter of the Sth of August 1812, written by Baily, Eaton & Baily to Samuel McKean. In this letter^ the writers refer to a former letter of the 3d of July, in which they informed Mr. McKean that they should, on the recommendation of their general agent, Mr. Holladay, inclose their invoices and bills of lading for the adjacent country to him, and requested .him to make inquiries into the circumstances of their correspondents, and be regulated, as to putting the letters, &c., into the post-office, so as to reach the persons to whom they might be addressed, by the result of those inquiries. Messrs. Baily, Eaton & Baily indulge the hope that the repeal of the British orders in council will restore peace between the two countries, in which event, McKean is still to be governed by their letter of the 3d of July. “ But,” they add, “ if, when you receive oui' invoices and bills of lading, a state of war should really continue, it will be proper not to deliver these goods, until you have received the amount of the invoices from the consignees, in cash.”
4.	John H. Browning & Co. were also claimants of part of the cargo. This claim stood on precisely the same principles with that of Kimmel & Albert. The documents given in evidence, were, in effect, the same, and were inclosed in the same letter from Baily, Eaton & Baily to Samuel McKean.
It was contended by the captors, in the district court, that, from the papers and letters on board, it appeared, that the goods were not sold and delivered in England, so as to vest the property in the claimants, but were sent to the agents of the shippers in the United States, to be delivered or not, according to their discretion : consequently, that the property was not changed, and the goods, therefore, were liable to capture as British property.
197
*322	SUPREME COURT	[Feb’y
The Merrimack.
*Restitution was decreed in the district court, and the decree was affirmed in the circuit court. An appeal was taken to this court, where the captors prayed condemnation, on the same grounds as in the courts below.
Harper, for the appellants, after stating the facts of the case, argued, that the claims of the captors to the several parts of the cargo in question all rested on the same principle, viz : That no transfer of the property had taken place at the time of the capture. The shippers were British subjects.
1st. As to the property claimed by William & Joseph Wilkins. It appears from the evidence introduced into this part of the cause, that the goods were not to be delivered to the claimants, until they had come first to the hands of the shippers’ agent, who was to decide upon the solvency of W. & J. Wilkins, and to regulate himself accordingly, with regard to the delivery of the goods. He even had a power, under certain circumstances, to make them his own. W. & J. Wilkins were also to have an option, either to take the goods or not. But a more powerful argument than either is, that the shippers themselves, in their letters both to the consignee and the claimants, denominate these goods British property, and express their apprehensions that the American government will not protect it. Again, if these goods had been lost at sea; they could not have been charged to the Messrs. Wilkins, as goods sold and delivered ; the loss would clearly have been the loss of the shippers. The property in this part of the cargo cannot, therefore, be considered as having been vested in W. & J. Wilkins. It was clearly in the British shippers, both at the time of shipment, and at the time of capture. The claim of the Messrs. Wilkins ought, therefore, to be rejected.
2d. As to the claim of McKean & Woodland, Harper stated the facts, and prayed condemnation on the general principle that the property had not been transferred.
*3231 3d an^	opposing the respective claims of Kimmel *&
Albert, and of John H. Browning & Co., the counsel for the captors argued on nearly the same grounds as in the case of W. & J. Wilkins ; and in addition thereto, he urged the condition of payment which was annexed to these two cases, and which was to be performed before the delivery of the goods to the claimants.
He also made a second point, in regard to all the claims, viz : That, admitting the goods to have been the property of American citizens, yet, since the declaration of war was known in Liverpool, at the time of the shipment, the claimants are to be considered as having been engaged in a hostile trade, which gives the property an enemy character, and subjects it to condemnation. The shippers, on this supposition, must be looked upon as the agents of the claimants, and the acts of agents, are, in law, the acts of their principals.
Pinkney, contra, for the claimants.—If the title of the claimants be good in equity, it is sufficient; but it is good at law, as well as in equity. In examining the several claims, I shall follow the order which has been pursued by the counsel for the captors.
First, as to the claim of W. & J. Wilkins. The invoice and bill of parcels show the purchase by the claimants. The bill of parcels is always good 198
1814]	OF THE UNITED STATES.	323
The Merrimack.
evidence, in an action on a policy, to show interest. The invoice corresponds with the bill of parcels and is not contradicted by the bill of lading. Leich’s letter to Harris speaks of the goods as being “for Messrs. W. & J. Wilkins.” These circumstances are strongly in our favor. It has been urged, however, on the other side, that the property of the goods could not have been in the claimants, at the time of capture, because, 1st. There was a condition of payment, without complying with which, the goods were not to be delivered; and 2d, because there was a power vested in Harris, to keep back the property, in case of the insolvency of the Wilkins’s. The first objection is founded on an error in fact. The objection, if applicable to the claimants of the other parts *of the cargo, is not so here. It appears, r*™. indeed, in some part of the evidence, that an inducement to prompt L payment was held out to the Wilkins’s, viz., an offer to allow seven per cent, discount for prompt payment; but there was no express condition of payment. The second objection, viz., that Harris was empowered to keep back, the goods, in case of the insolvency of the claimants, is easily answered. Insolvency of the parties was the sole ground on which Harris could retain the goods ; but this is only the same power which the shipper himself would! have had, by the general law in maritime cases, if he had consigned the goods directly to the Wilkins’s. It is the general law, in case of the insolvency of the consignee, that the shipper may stop the goods in transitu in itinere, although purchased in England, if the purchase was on credit. The intervention of Harris, in this case, merely gives a facility to the right which the shippers before possessed. The Josephine, 4 Rob. 21, 25.
It is also urged, that the shippers themselves, in their letters, have denominated the goods in question, British property, and expressed an apprehen!-sion that it would not be protected by the American government, and have therefore suggested to Harris, that he could swear they were his. This objection possesses little weight. A mere attempt to conceal belligerent property only deprives the party of the benefit of further proof, but is not a ground of confiscation. The Madonna delle Gracie (Gregory's case), 4 Robi-161, 195.
2d. As to the claim of McKean & Woodland. Two objections to this^ claim, arising from the letter of Baily, Eaton & Brown to McKean, have been urged by the captors. 1 st. The consignment to Holladay. 2d. The' expectation of the shippers that McKean & Woodland would pay cashi. The consignment to Holladay needs no farther explanation than is to be found in the letter which states the fact. The shippers, having heard that the partnership of McKean & Woodland was dissolved, were uncertain to which of them the consignment ought to be made, and *thei'efore, r*™« determined to consign the goods to Holladay. But the property L vested in McKean & Woodland, notwithstanding this intermediate consignment. In a court of prize, such intermediate consignment is not considered, as altering, in any degree, the nature of the case. 2d. Though the letter from the shippers requests an immediate cash payment, there is no express condition to that effect: there is merely an appeal to the justice and honor of the claimants. An additional proof that the property was in the claim*-ants, is, that it was insured for them and not for the shippers. It appears that all the bills of lading, except that for W. & J. Wilkins, express the shipments to have been made on account and risk of American citizens gen
199
325	SUPREME COURT	[Feb’y
The Merrimack.
erally. The reason for this general mode of expression was the uncertainty of the shippers respecting the dissolution of the partnership, z
3d and 4th. We now come to the claims of Kimmel & Albert, and Browning & Co., which depending on precisely the same principle, will be examined together. In these two cases only, is there an absolute condition of payment. But the goods had been regularly ordered by the claimants, long before they were shipped. They were finally shipped for them, and in pursuance of their orders. They were delivered to the master of a general ship. The invoice, bill of lading and letters, all concur in showing property in the claimants. The legal property vested in them, by the delivery of the goods to the master. The shipper, having delivered them to the master, was functus officio, and could not thereafter stop the goods, on any ground but the insolvency of the consignee, which is the only case of stoppage in transitu authorized by the common law or the law maritime. The Aurora, 4 Rob. 181, 219 (Conversation between Sir W. Scott and Dr. Lawrence); The Constantia, 6 Rob. 325-27.
Again, can a captor divest the eventual rights of citizens, or does he take the property subject to the conditions to which it would be subject in the hands of the consignor or his agent ? We contend for the latter doctrine. ■*3281 *^ie rights of the citizen become absolute, upon his complying with
J those conditions. In the present case, if the goods had arrived at -their port of destination, without capture, the title to them would have ^become absolute in Kimmel & Albert, upon payment to the consignor of the ¿amount required: and, as the captor, according to our doctrine, does but :stand in the place of the consignor, we contend, that the property will ¡become equally absolute in the claimants, upon making the same payment .to him.
We do not admit the doctrine, that property cannot, upon the high seas, ¡pass, in transitu, so as to defeat the captors. Suppose, it had been agreed that the property should change, after it had passed a certain degree of longitude would not the agreement be carried into effect, upon that degree of longitude being past ? But it is not now necessary to contend for this doctrine, because the property in the present case, was vested in the claimants, upon the shipment, liable, however, to be divested upon a condition. There is manifest inconsistency in the English prize law. A belligerent lien will be condemned, but a neutral lien will not be protected: neutral property may become belligerent in transitu, but belligerent property cannot become neutral. This court will adopt the reason of the rule, but not the rule itself.
Harper, in reply.—In this case, there was no transfer of either an equitable or legal right. In the case of W. & J. Wilkins, the delivery of the goods was only to Harris ; or to the master of the ship, who, by undertaking to deliver them to Harris, became his agent, and not the agent of the Wilkins’s. So, with regard to the invoice, bill of lading and bill of parcels ; they were all delivered, not to the Wilkins’s, but to Harris or his agent, the master. No evidence of the title of W. & J. Wilkins was put in a course to reach them, but through the agency of Harris, who was not to deliver it at all, but in a certain event. The goods, although purchased by order of the claimants, were not delivered to them. The claimants could not have maintained an action for them, either at law or in equity.
200
1814]	OF THE UNITED STATES.	*327
The Merrimack.
*McKean & Woodland’s case is still stronger against them. The business of that concern was not continued by any person. They have become insolvent. Holladay has the absolute control over the goods. He was to make arrangements with the claimants, or with McKean alone, and was to require cash.
Saturday, March 12th, 1814. (Absent, Livingston, J.) Marshall, Ch. J., after stating the facts relating to the several claims in this case, delivered the following opinion of the court, as to the claims of McKean & Woodland, Kimmel & Albert, and John H. Browning & Co.
1. As to the claim of McKean & Woodland. The question of property, in this case, depends on certain letters written by Baily, Eaton & Brown, which were found on board the captured vessel. A letter of the 11th of July 1812, addressed to Samuel McKean, shows in the clearest manner, that the property in dispute was purchased and shipped for McKean & Woodland, in pursuance of their orders; and accounts for assigning it to Mr. Holladay;
There is nothing in the cause which can throw the slightest suspicion on the fairness of this transaction. It, unquestionably, is, what, on the face of these letters, it purports to be, a purchase for McKean & NVoodland, made in pursuance of their orders, and shipped for them to Robert Holladay, because, in the moment of shipment, information was received that their partnership was dissolved, and the shipper had no instructions in what manner to direct to them. In this situation, he considered himself as acting most certainly for their advantage, by addressing the goods to an agent residing in the same town with McKean & Woodland, who should receive them to their use. In such a case, the court is of opinion, that the property was vested in McKean & Woodland, and is, consequently, not liable to condemnation as enemy property. The sentence is affirmed.
*2. As to the claim of Kimmel & Albert. From their letter, it is r*Q2Q apparent, that, in the event of war, Baily, Eaton & Baily reserved to L themselves that power which ownership gives over goods, and instructed their agent, McKean, in what manner that power was to be exercised. There being no letter addressed to Kimmel & Albert, but under cover to McKean, it is apparent, that they were to know nothing of the shipment, unless, in the opinion of McKean, it should be prudent to make the communication ; and even then, the property was to became theirs, not under the original contract, but under a new contract to be made with McKean. The delivery on board the ship, was a delivery to McKean, not absolutely for Kimmel & Albert, but for them, provided they acceded to new and distinct propositions made by Baily, Eaton & Baily. In such a case, no change of property could take place until Kimmel & Albert should accede to these new propositions ; and the capture having taken place before the contract was complete, the goods must be considered as enemy property. The sentence is reversed, and the claim dismissed.
3. The claim of John H. Browning & Co. This claim stands on precisely the same principles with that of Kimmel & Albert. The documentary evidence is in effect the same, and was inclosed in the same letter from Baily, Eaton & Baily to Samuel McKean. The claim, therefore, must be dis missed. The sentence is reversed, and the claim dismissed.
201
328	SUPREME COURT .	[Feb’y
The Merrimack.
Johnson, J., delivered the opinion of the majority of the court, as to the claim of W. & J. Wilkins, as follows :—The points of distinction between this case and that of McKean & Woodland, unfavorable to these claimants, are the following: 1. That Harris, the direct consignee, had a control given over the goods» which authorized him, had *he thought proper, to
-* refuse to deliver them over to the Wilkins’s. 2. That Harris had also a power, under certain circumstances, to make them his own. 3. That, in the letters both to the Wilkins’s and Harris, the consignor alleges as his reason for making the shipment through Harris, his fears that this government would not protect British property ; thereby, as is contended, acknowledging this property to be British. On the other hand, it is a circumstance favorable to this claim, that the original bills of parcels were made directly to the claimants, and were sent along with the shipment, as a substitute for an invoice.
It is assumed as a postulate, that a direct consignment on account of the consignee, made in pursuance of his orders, is not subject to condemnation as prize of war ; and that it is immaterial, whether it be purchased for cash or credit ; or insured in the enemy’s country or elsewhere. It will, then, be enough to show, that every beneficial interest which such a shipment would vest in the consignee, was vested in the claimants in this case.
The first difficulty arises from the circumstance that the bill of lading was made out to Harris, and not to the Wilkins’s, whereby the master of the ship became bound to deliver them to Harris, or his assigns. Upon a fair view of the whole transaction, this distinction will be found rather to be formal than real; and that it produces no difference in the state of right between these parties. The interest vested in the consignee, by the delivery to the master, is not absolute to all purposes. So far as relates to the right of stoppage in transitu, it continues subject to the control of the consignor, and may be reduced by him into possession, before actual deliv-*3301 ery ’ or t^ie authority °T magter to deliver them *according to
J the original bills of lading, may be countermanded, and another destination given them.
Upon comparing all the circumstances of this case, it will be found, that the transaction was so arranged as to produce no other change in the rights of the parties, than to put it in Harris’s power to exercise this right of stoppage in transitu, in case of the insolvency of the Wilkins’s, The bill of lading is made out to Harris, which gave him the right to demand the goods of the master. But the invoice, which has the additional strength of a bill of parcels, is made out to the claimants, which gave them the right to demand the goods of Harris. Both in the letter to Harris and to the Wilkins’s, the shipment is declared to be on account of the latter; and in the letter to the former, the shipper goes into a detail of his reasons for giving the claimants so large a credit. Thus, these papers, taken together, place the interest of these claimants on the same footing as if a bill of lading had been made out to Harris, for the use of the Wilkins’s; and in that case, there could have been little doubt that the claim must be sustained.
' If the invoice, although made out to the claimants, had been inclosed to the direct consignee, it would have furnished a strong argument in favor of the captor. But here, the evidence of right is placed in the claimants’ own hands ; thereby acknowledging their right in the goods shipped, and furnish
202
1814]	OF THE UNITED STATES.	330
The Merrimack.
ing them with the means of asserting it. Thus, the shipper could never have denied the rights of the claimants in this case ; for he had furnished the most direct and conclusive evidence against himself.
But it is asserted, that Harris had it in his power to make these goods his own, in defiance of the will of the claimants. If this were the fact, it would only show that, in *either view of the alternative, it was a shipment on American account, and that the shipper had parted with *■ all his interest. But the fact is not so : and in answering this argument, we answer the remaining one also. The shipper knew what he was about. War was already probably declared, and he was aware of the crash of mercantile credit which generally follows on such an event. He also knew, that in case of asserting his right of stoppage in transitu, the property reverted and became British ; in which case, as he expresses himself, the property might be subjected to seizure, as enemy’s property. With these considerations on his mind, he makes out the bill of lading to Harris, and informs him that his object is to enable him to keep the goods back, in case of an alteration in the circumstances of the claimants : and in this case only, is the hint given him that he may claim them as his own.
It is contended, that he acknowledges, in his letter to the claimants, that the property is British. But this is an error in fact. It was necessary to assign some reason, or some excuse* for not having the bills of lading made out to the claimants themselves. And for this reason, he urges an apprehension that our government would not protect British property. But this reason could only be applicable in the event of a stoppage in transitu; as a direct shipment to the claimants would have left no room for such an apprehension. In the letter also to Harris, it is said, is contained an acknowledgment that the property is British. This, also, is founded in mistake ; for the letter to Harris only communicates the reason which had been assigned in the other letter for having the bill of lading made out as it was. But suppose, the passage in the letter to the claimants, on this subject, had been full and explicit to the declaration of an opinion that the property continued British, although shipped on American account ; yet this would have been but an expression of an erroneous opinion, and certainly ought not, so far as the interests of the claimants are concerned, to have an influence on the decision of this court.
But it is asserted, that the goods continued, on the whole voyage, at the risk of *the shippers. This may be true, and yet it does not prove r*oo9 enough. Had the shipment been direct to the claimants, and insur-ance omitted, contrary to order or custom, the shippers would have been equally liable, and yet the property would not have been subject to capture. It is enough for the purposes of the claimants, that the property in the goods had been transferred to them, independently of the control of the shipper or his agent, except so far as the right to stop in transitu interfered. And such was the situation of the rights of the parties in this case. The goods ordered by the claimants were shipped to an agent, for their use, subject only to a right which unqestionably, under any circumstances, existed in the shippers. In their letter to the claimants, they inclose a bill of parcels, by way of invoice, containing a positive acknowledgement of the sale to them ; and the letter itself, as well as that to Harris, speaks of the goods expressly as their goods. The immediate consignee could, therefore, only
•	203
3*2	SUPREME COURT	[Feb’y
The Merrimack.
be considered as the bailee of the claimants. Nor does it appear, that a tender of the money would have been necessary to entitle them to receive the goods of Harris, as, in the letter to Harris, it is acknowledged to be a sale on credit, and particular discounts offered as an inducement for an early payment. Indeed, there are words in the letter to the direct consignee, which amount to a positive declaration that the shipments were not on his account, nor on that of the shippers, but for the use and benefit of others. “ I shall send you, and our friends, through your hands, all the goods prepared for your market.” By connecting these words with the bills of lading, the result is, that, although the direct consignee was entitled to demand the goods of the master, yet it was not to his own use, but to the use of the several persons on whose account they were shipped.
Decree affirmed.
Stoby, J., delivered the following separate opinion, as to the claim of W. & J. Wilkins—I cannot concur in the opinion of the court, just delivered, as to the claim of the Messrs. Wilkins. It is true, that the goods were purchased pursuant to the orders of Messrs. Wilkins ; but I do not think *	, that the *property, by the mere purchase, became vested in them ;
J and the usage and course of trade is generally otherwise. The purchase was made with the money of the shipper : and until a delivery, actual or constructive, to the Messrs. Wilkins, the propriety thereof, remained completely in the shipper. The goods were also shipped as the property of the shipper, consigned to the agent of the shipper, and not to the agent of the Messrs. Wilkins, to be delivered only in case of the consignee’s being satisfied of their perfect solvency. It is true, that the bill of lading purports that the goods are shipped on account and risk of the consignee ; but the confidential letters explain the transaction, and show that the shipment was so made, as a cover against belligerent risks ; and that the property was not intended to be changed from the British shipper, in its transit. The delivery, then, of the goods on board of a general ship, was no delivery to the Messrs. Wilkins : it was not even a delivery which vested the property of the goods in the consignee. The legal property and possession thereof still remained in the shippers ; and if the goods had actually come to the hands of Mr. Harris, his possession would have been but a continuation of the possession of the shipper. In contemplation of law, the goods were as much under the control and possession of the shipper, as if he had been on board the vessel, during the voyage, or had shipped them in his own name. If they had been lost, during the voyage, the loss would have been his. He had not a mere right of stoppage in transitu in case of insolvency, for that can be exercised only where the property by the shipment is vested in the consignee for his own use ; but he had a perfect right of countermand in all cases whatever. He might sell the property, give it a new direction, control its delivery, and, indeed, exercise all the rights of full dominion and propriety. It seems to me, that if the Messrs. Wilkins had neither a jus ad rem, nor a jus in re, and the latter only is recognised in prize courts, they could not, by subsequent acts, overreach the legal rights of the captors. At the time of the shipment and capture, it was, in my view, enemy property, liable to condemnation, having no neutral or American onus attached to it. It was subject to the legal claims of the creditors of the shipper ; and noth-
204
1814]	OF THE UNITED STATES.	333
The Frances.
ing existed in the Messrs. Wilkins but a mere spes occupandi, or, as the common law phrases it, a mere possibility, which attached *neither to [-* the substance nor the form of the thing.
Upon what ground, then, if I am right as to the ovznership of the goods, I can the claim be maintained ? The right of capture acts upon the proprietary interest of the thing captured, at the time of capture. It is not affected by the secret liens, or private engagments of the parties. It repudiates even the strong claim of a bottomry-bond, because it is not ajus in re. Can, then, a mere possibility be of more consideration in a court of prize ? The absence of all authority to this effect, and the strong and emphatic language of all the cases as to secret liens, speak as powerfully as the most direct and pointed decisions against it.
There is a case cited by the court in The Aurora, 4 Rob. 218, where property was shipped, by a merchant in Holland, to A., a person in America, by order of B., and per account of B., but with directions to A. not to deliver it, unless satisfaction should be given for the payment; and it was held as good prize, on the ground, that the property still remained in the enemy shipper. This case I think strongly in point; and the manner in which Lawrence attempted to distinguish it from the case then on trial, shows a full concurrence in its correctness. The reasoning of the court in The Aurora itself, and in The Marianna, 6 Rob. 22, are also illustrative of the general doctrine.
On the whole, I consider that, by the doctrine of the common and the prize law, these goods were, at the time of capture, enemy property ; and that the claim of the Messrs. Wilkins, ought to be rejected ; and in this opinion, I have the concurrence of two of my brethren, (a)
Monday, March 14th. Harper suggested diminution of the record in the case of W. & J. Wilkins, and prayed the court to grant a writ of certiorari to the court below; but the court refused, the case having been argued and decided.
*The Fbances, Boyee, master: Thompson et al., claimants. [*335
Prize.—Domicil.
A naturalized citizen, who, in time of peace, returns to his native country, for the purpose of trade, but with the intention of returning again to his adopted country, continuing in the former a year after the knowledge of the existence of war between the two countries, for the purpose of winding up a complicated business, and engaging in no new commercial transactions whatever with the enemy, and actually returning to his adopted country in a little more than a year after his first knowledge of the war, is to be considered .as having gained a domicil in his native country; and his goods, captured after the war, liable to condemnation.* 1
Goods appearing by the ship’s papers to be a consignment from alien enemies to American merchants, condemned in toto as prize, although further proof was offered that American merchants were jointly interested, and that they had a lien upon the goods, in consequence of advances made by them. Further proof on these points refused.
This was an appeal from the sentence of the United States’ Circuit Court for the district of Rhode Island. The facts were as follows :
(a) Judges Washington and Todd.
1 And see The Friendschaft, 3 Wheat. 15.
205
835	SUPREME COURT	[Feb’y
The Frances.
War was declared by the United States against Great Britain, on the 18th of June 1812. The ship Frances, having on board a cargo of goods of British manufacture, consigned to various persons in the United States, sailed from Greenock, in Scotland, on the 19th of July, in the same year, for New York. On the 28th day of August following, she was captured by the Yankee privateer, and carried into the district of Rhode Island, where the cargo was libelled as enemy property.
Robert and James Thompson and William Steele, naturalized citizens of the United States, claimed a considerable part of this cargo as their own property ; and also claimed 130 packages, another part of the same cargo, as being owned by them jointly with British subjects, or as having a lien upon the property, in consequences of advances made upon the consignment. These goods were all consigned by James Thompson, a naturalized citizen of the United States, residing in Scotland, to William Steele, a citizen of the United States, carrying on the business of the concern in New York.
All the goods claimed, except the 130 packages, were incontestibly the property of the claimants ; and on the trial, restoration of two-thirds was decreed to Robert Thompson and William Steele, residents in the United States ; in which decree, the captors acquiesced. The remaining third, which belonged to James Thompson, who resided in Scotland, was condemned : and from this sentence, he appealed to this court.
*3361 *The 130 packages were also condemned as enemy property ; and
J from this sentence, the claimants appealed to this court; but having received more full information than they originally possessed respecting the ownership of these goods, they abandoned their claim as to this property, except as to 66 boxes, of which they still claimed to hold a moiety ; the other moiety being acknowledged to be the property of Messrs. Dalgleish & Frame, British subjects.
A claim to all the above mentioned goods was also interposed by the United States, for a violation of the non-intercourse laws : which claim was rejected in the circuit court, and an appeal taken to the supreme court.
James Thompson, as appeared from the evidence, was a native of Scotland, and came to the United States in the year 1793, where he resided, carrying on trade and commerce, until the year 1801. In 1797, he was naturalized. In the year 1801, he went to France, on the commercial business of his house, and some time afterwards, passed over to England, where he was employed in making purchases for and shipments to his house. In the year 1803, he settled in Glasgow, where he continued doing that part of the business of the partnership which was to be transacted in Great Britain, until the declaration of war. After the knowledge of that event, he transacted no commercial business whatever, and was exclusively employed in arranging his affairs, in such manner as would enable him to return to the United States. This being accomplished, he, in August 1813, engaged a passage on board the cartel ship, the Robert Burns, about to sail from Liverpool to New York, but was stopped by the orders of government. He then passed over to Ireland, and privately embarked for the United States, where he arrived in November last. Several affidavits were taken to show that he always considered the United States as his permanent place of residence, and that he uniformly expressed his determination to return. His letters manifested the same intention. It also appeared, that his business was com-206
1814]
OF THE UNITED STATES.
The Frances.
336
plicated, and required his attention, after he ceased to engage in new adventures ; but it did not appear, that he had performed any act which could be considered as *commencing to return, until August 1813, when he r*qo>, engaged a passage on board the Robert Burns.	*-
As to the 66 boxes of merchandize, the moiety of which was still claimed by Robert and James Thompson and William Steele, they prayed, on bringing up the cause to this court, to be allowed to make further proof of their property in the said goods ; and offered, as further proof, the affidavit of James Thompson, that they were the joint property of the house of Dalgleish & Frame and of Messrs. Thompsons and Steele, under a contract made by two letters which were exhibited, and which he said were original. In addition to this, James Thompson swore that he gave his bill for the moiety of these goods, which bill he had paid, and that he was prevented from notifying this contract to his partners, in his letter to them, by the hurry produced by the shipment. The claimants offered also, the affidavit of William Steele, stating that, some time after the papers of the ship Frances were opened, he received the invoice and letters annexed to his affidavit, in an envelope with some other papers. That the letters were in the handwriting of John Frame and James Thompson. That, before he received them, he was convinced, from the marks, that the goods in the invoice were, in some respects, the joint property of his house and of Dalgleish & Frame ; which fact he stated to the agents of the captors, as well as the judge of the circuit court, at the trial, in June 1813 ; and that James Thompson was in the habit of taking goods on joint account, from houses in Scotland, and sending them to the house in America, without specifying whether they were on joint account or on commission.
The letters referred to, were, one from Dalgleish & Frame, dated Glasgow, 27th June 1812, and addressed to Mr. James Thompson, Glasgow, in which they say, the goods were printed in consequence of his orders ; and express a hope that he will take the whole contained in the invoice ; or, if not, that he will allow them to go to his house on joint account. The other was a letter addressed to Messrs. Dalgleish & Frame, signed James Thompson, and dated Glasgow, 1st July 1812, in which he acknowledges the receipt of their letter of the 27th of June 1812, and says, that as there are a *great many more goods in the invoice than he had ordered, and as r*ooo he did not wish to take so large a quantity, he would send them on L joint account.
The invoice, or rather bill of parcels, was dated Glasgow, 27th of June 1812, and was headed “Messrs. R. & J. Thompson and W. Steele bought of Dalgleish & Frame.” The affidavit of John Frame, taken in Glasgow, was also exhibited, in which he swears that the goods are the joint property of Messrs. R. & J. Thompson and Wm. Steele and of Dalgleish & Frame. Such was the further proof offered.
In the Frances, were two letters from James Thompson to Wm. Steele. The first was dated Glasgow, July 13th, 1812, in which he says “I annex a list of goods consigned by the Frances. These consignments are the safest and surest trade for us, and it was from this conviction, that I allowed of so many consignments.” In the annexed list of consignments, referred to in the foregoing letter, were the goods shipped by Messrs. Dalgleish & Frame. In this letter, he writes on the business of the house, speaks of the consign-
207
[Feb’y
SUPREME COURT
The Frances.
338
merits generally, recommend that the goods should be promptly sold at the market price, and accounts of sales returned ; but makes no allusion to any interest in the goods of Dalgleish & Frame.
Irving, for appellants, after stating the facts of the case, and the claim of Robert & James Thompson and William Steele, contended, that British property shipped on board an American vessel, before a knowledge of the war, was not liable to capture, either under the laws of the United States or the president’s instructions to the commanders of privateers. That the commissions issued by the president to the private armed vessels of the United States, only authorized them to seize, 1st. British vessels and the property found on board : 2d. All property liable to capture by the laws of war ; and that the property, in the present case, did not come under either of these *ooqi descriptions. *Acts of Congress of June 18th, and June 26th, 1812
J (2 U. S. Stat. 755, 759). See also, the instructions of the President to the private armed vessels of the United States.
Enemies’ property in possession of the nation declaring war, at the time of the declaration, is not liable to seizure as prize of war : it can only be sequestered by municipal regulation. The court having jurisdiction in cases of this kind, sits as a municipal, not as a prize court. The Rebeckah, 1 Rob. 238 ; The Boedes Bust, 5 Ibid. 207 ; 2 Azuni 224.
The property, in the present case, is to be considered as committed to the public faith. The circumstances under which it was shipped, and afterwards sailed, were very peculiar. The non-intercourse act and the several acts supplementary thereto, the revocation of the French decrees, thQ president’s proclamation of 2d November 1810, the letter of the American secretary of state (Mr. Monroe) to Mr. Foster, the British minister, under date of July 26th, 1811, the revocation of the British orders in council, and the assurances of Mr. Russell, the American charge d'affaires in Great Britain, presented a state of things on which the British merchants, and the American merchants in Great Britain, confidently relied for the security of their property shipped, under these circumstances, to the United States.
This doctrine, that the property of an enemy, found in the country at the breaking out of a war, is under the safeguard of the public faith, is a principle of the common law. In England, property in this situation would not be condemned. Enemy goods which came down the Baltic, and were landed in England, before a knowledge of the war, have been there held to be safe. Magna charta itself recognises the principle. By the rule of reciprocity, therefore, protection ought to be extended by the American government to the property now in dispute.
It is said, that we have not a standing in court, that James Thompson is an alien enemy, and that an alien enemy cannot support a claim of this kind. *3401 we *sa?’ ^at, admitting James Thompson to be an alien enemy, ■* his agent in this country may have a standing in court, if the property in question be divested of its hostile character, "which we contend is the case here. Nostra Madonna delle Gracie, 4 Rob. 161; 6 Ibid. 1 ; Ibid. 21; The Marianne, Ibid. 24 ; The Packet de Bilboa, 2 Ibid. 135.
But if these goods be hostile property, and the claimants, on that account, have no right to them, still, we contend, the captors cannot support their claim : The property of the goods, if not in the claimants, is in the United
208
1814]
OF THE UNITED STATES.
The Frances.
340
States, and liable to seizure under the non-intercourse act of March 1st, 1809 ; which act is neither repealed by nor merged in the act declaring war, nor any other act. (2 U. S. Stat. 528, §§ 5, 8, 18.) The 3d section of the prize act (Ibid. 759), requires that all the laws of the United States then in force, be observed by the owners, officers and crews of privateers. The non-intercourse act was one of the laws of the United States then in force. The second act of instructions to the privateers of the United States (issued 6th August 1812), interdicts the capture of American vessels having on board British goods : they are to be seized by the collectors of the respective ports. The United States have always asserted their prior right to such property. (See the circular letter from the controller of the treasury, of October 16th,. 1812.) They have chosen to municipalize it—to reserve it to themselves. Congress has resisted every attempt to the repeal the non-intercourse. The act of July 13th, 1813 (3 U. S. Stat. 4), shows that the United States have not relinquished their claim to property situated like that now in dispute. Their relinquishment only goes to such property as should be condemned as. prize of war.
As to the first instructions of the president, they only authorize the private armed vessels of the United States to capture enemy property on board neutral or hostile vessels, and not that found on board American vessels returning to the United States, flying before the storm of war, and seeking the protection of their country. See the circular letter of Mr. Secretary Gallatin, of 26th August 1812. The second set of instructions, before referred to, prohibit the capture of American vessels returning to the United States with British property shipped *after the repeal of r*o4T the orders in council, and before the declaration of war was known *• in England. These instructions were operative as soon as issued, and were the law for all the privateers of the United States. They made a cessation of hostilities as to the property above described ; which if thereafter captured by a privateer, would be restored to the owners. The captors w’ould only be relieved from the payment of damages and costs. 2 Azuni, 229r 230, 355, 263 ; The Speedwell, 2 Dall. 40 ; The Mentor, 1 Rob. 154.
We would now, on behalf of the claimants, move the court to allow us further proof as to the ownership of the property. We wish to show that the goods are not, in truth, consigned property, but that one moiety belongs to the claimants. We wish to explain the papers which the captors have considered as proving the property in question to be hostile. That we have a right to make this explanation, we refer the court to the following cases. 6 Rob. 3 ; BelVs Case, Ibid. 1’32 ; Madonna delle Gracie, 4 Ibid. 161 ; The Josephine, Ibid 21 ; The Sarah, 3 Ibid. 268. That further proof may be allowed in an appellate court, see 1 Rob. (Am. ed.) p. 7, Sir W. Scott and Sir J. Nicholl’s statement of the general principles of proceedings in the admiralty.
Dexter, contra, said, that the motion, on behalf of the claimants, for further proof, was entirely unexpected ; that there was nothing for them to found such a prayer upon ; that the claim to the 130 packages was ambiguous, the ground upon which it was made being alternative, viz., either that the goods were shipped on joint account, or that the claimants have an equitable lien on them, on account of advances made on the consignment.
8 Cbanch—14	209
341	SUPREME COURT	[Feb’y
The Frances.
That these 130 packages were wholly British property, is clear from the papers exhibited : they were consigned by British merchants to the claimants, with orders to sell, and remit the proceeds.
The decision as to the residue of the property in dispute, viz., the third claimed by James Thompson, depends upon his national character. That this is hostile is evident *from the decision in the case of The Venus J (ante, p. 253), to which decision, and the argument on behalf of the in captors that case, we beg leave to refer the court.
To return, then, to the 130 packages. It being clear that they were British property, the only question is, whether such property is liable to condemnation, as prize of war. The case, as stated and argued upon by the captors, is not justified by the facts ; the real state of the case is materially different. The Frances was captured, not in port, but on the high seas. She did not enter the port, upon the faith of the nation, but was brought in as prize. The counsel for the claimants, admitting the goods now in dispute, to be British property, has said, that American property similarly situated would not be condemned in England ; and that, therefore, by the rule of reciprocity, protection ought to be extended by the American government to these goods. But even the rule of reciprocity, if it were one which -this court could enforce, would not avail the claimants in the present case ; for the British government do not themselves respect the rule : they have captured and condemned our vessels sailing towards England, though ignorant of the war.
The declaration of war is expressed in terms as general as possible. The instructions of the president to the privateers of the United States give them a general authority to capture all property liable to capture by the Haws of war. The public faith was not pledged so as to protect this vessel. If it was pledged to repeal the non-intercourse law, there was no pledge that war should not be declared ; and we claim condemnation under the declaration of war.
As to the president’s instructions of 26th August, it appears, that they were issued only two days previous to the capture of the Frances. The captors, consequently, had no notice of their existence. They sailed with instructions authorizing this capture : and we contend, *that the new J instructions were no instructions to these captors, until they had received notice of their being in force.
It has been said, on the part of the appellants, that if their claim is rejected, the United States, and not the captors, will be entitled to the property. We reply, that the United States have now abandoned their claims ; so that the property, if condemned, must be condemned to the captors.
Harper, for appellants.—The reasons on which we ground our prayer for further proof, are the following : 1st. Certain bales of carpeting appear, by the invoice and bill of lading, to be the property of Steele. In the letter of 13th July 1812, from James Thompson to Steele, they are stated to be a consignment. The further proof which we would offer, in regard to this apparent inconsistency, goes to show that upon these goods, although stated to be consigned to Steele, James Thompson & Co. had made advances to the owners, to the amount of 1000?. sterling, which created a lien upon the goods. This lien, we contend, was the property of James Thompson & Co.
210
1814]	OF THE UNITED STATES.	343
The Frances.	g
Again, certain other goods appear, in like manner, by the bill of lading and invoice, to be the property of Steele ; but, by the letter, to be the property of Dalgleish & Frame and James Thompson. The further proof we offer here, is, that we were joint-owners with Dalgleish & Frame. It is a general rule of prize law, that further proof shall be allowed on an appeal, where the preparatory evidence was doubtful or ambiguous. The present case, we conceive, comes within this rule.
Dexter, contra, on this point of further proof, cited the two following cases, The Marianna, 6 Rob. 24 (Am. ed.), to show that an equitable lien is no ground of restitution in prize causes ; and The Tobago, 5 Ibid. 196, where it is decided, that a bottomry-bond, given in time of peace, gives *no such title to the obligee as will enable him to support at claim for *• restitution, after a declaration of war. He contended, that a captoj’ takefc cum onere, only when the onus is visible and direct.
Pinkney, on the same side.—Further proof, under the circumstances of this case ought not to be allowed. The goods were shipped, when war was expected. The intention of the shipper was to give a neutral character to the property. James Thompson knew the facts relative to the transaction, as well when he made the shipment, as now. He had reason to expect and did expect war: hence, the color given to the transaction. If the court allows further proof in a case like this, they will hereafter be inundated with fraud and perjury. It is a general rule of the prize courts, that further proof which goes to contradict the ship’s papers, shall not be admitted. If there had been really an American interest in this case, it was James Thompson’s duty, as well as interest, to let it appear upon the ship’s papers. The original claim of the appellants was stated in the alternative—either they had a lien on the goods for money advanced by them through James Thompson, or the goods were consigned to them on joint account.
The heading of the invoices was false, by their own admission. A letter appears among the papers in this cause, from Robert Sterling, jun., who had property on board, shipped in the name of William Steele : this letter was evidently written in contemplation of war. James Thompson’s letter of 13th July, contains a list of goods consigned, in contradistinction to the goods belonging to the firm. The goods in question are among the consignments. By James Thompson’s letter of 14th July, it appears, that he knew of the war. From a second letter of Robert Sterling, jun., dated 15th July, it is evident, that he also knew of the war. In contradiction to such documents, further proof ought not to be admitted.
Harper, in reply.—In the cases of the bottomry-bond and lien, cited by the counsel on the opposite side, the possession of the *property was in the captors. The lien was a lien without possession, it was only *-an incumbrance. But here, the thing was in the possession of him who had the lien: the property was vested, so far as the lien extended for the advances. Steele was Thompson’s agent, and might have retained the goods, until the advances were repaid.
Although war was feared, peace was confidently expected. There was no motive for giving a neutral character to the property : no fraud was
211
345	SUPREME COURT	[Feb’y
|	The Frances.
intended. There was no intention to defeat the non-intercourse law. Besides, an intent, even if it existed, to defeat a municipal law, is no ground for refusing further proof.
The letters referred to by the counsel for the captors, went with the invoices ; and the accidental ambiguity which seems to exist in the papers was owing to the hurry occasioned by the endeavor to get the goods first to market, and to obtain the bounty on exportation.
Dexter.—In the cases cited, the property was not more in the belligerent captor, than it was in the present case : These goods never were in possession of the consignee ; they were captured in the hands of the shipper: they were not shipped as the property of James Thompson & Co., but as the property of the Scotch merchants.
Irving cited The Demon, 1 Rob. 86, on the point of further proof.
Monday, March 7th. Irving.—As to the national character of James Thompson. It appears, from the testimony in this case, that James Thompson is a native of Scotland, that he came to the United States in 1793, was naturalized in 1797, and in 1801, returned to Scotland, where he continued to reside as a merchant, until some time subsequent to the declaration of war.
Naturalization, under the laws of the United States, confers upon the subject of it all the rights and privileges of anative Citizen, excepting that of *q4.ni becoming president of the United States. He has, therefore, the *same
J right to leave this country and go abroad, which a native citizen possesses. The law of England is the same in this respect. When is the hostile character to be fixed upon him ? Not until a war breaks out between the two countries, and he continues, notwithstanding, to reside and carry on a hostile trade with the enemy country. Murray v. The Charming Detsy, 2 Cr. 120. A citizen, whether native or naturalized, surprised in a foreign country, by a war, has a right to a reasonable time to withdraw his effects. Madonna delle Gracie, 4 Rob. 161,195. In Mr. Johnson’s case {The Indian Chief, 1 Rob. 17, 12), his engagements to his creditors were considered by the court as a sufficient justification of his residence in Great Britain, and his property was restored. On the point of reasonable time to withdraw, see The Ocean, 5 Rob. 90; The Hoop, Ibid. 165, 196; The Dree Gebroeders, 4 Ibid. 191, 232 ; Vattel, lib. 3, ch. 4, § 63.
Expectation of peace justifies delay in an enemy country, or explains the quoanimo of the resident. The Diana, 5 Rob. 60. In Dell v. Gilson, 1 Bos. & Pul. 355, it is decided, that the goods of a British subject, purchased in an enemy’s country, after the commencement of hostilities, may, under certain circumstances, be sent to England. This decision, though now overruled in that country, in the case of Potts v. Dell, 8 T. R. 548, has not been overruled here. The liberty to withdraw property in case of ■war, is expressly recognised by various treaties, which fix the time for withdrawing. See, among others, the Treaty of 1794, between his Britannic majesty and the United States, art. 26. But these treaties do not create the principle. If, then, we allow time to an enemy to withdraw his effects, shall we not allow at least the same indulgence to our own citizens ?
,.^1 A cruizer cannot capture for violation of a municipal law. The
-* seizure for a violation of the non-intercourse *act is directed to be 212
1814]	OF THE UNITED STATES.	347
The Frances.
by the collectors ; the action for the recovery of the penalties and forfeitures arising under the act is to be debt, and the proceedings generally are to be in conformity with the act of 2d March 1799, to regulate the collection of duties on imports and tonnage. But where a statute gives a particular form of action, that form must be pursued. Act of Congress of March 1st, 1809, § 8, 18 (2 U. S. Stat. 530, 532) ; act of March 2d, 1799, § 67, 68, 69, 88, 91 (1 Ibid. 677) ; 4 Bac. Abr. 654, tit. Statute K.
Saturday, March 12th, 1814. (Absent, Livingston, J.) Marshall, Ch. J., after stating the facts of the case, delivered the opinion of the court, as follows :—The rights of James Thompson depend entirely on his national commercial character ; which is decided by the opinion given in the case of The Venus (ante, p. 253). The sentence of condemnation pronounced in the circuit court, as to James Thompson’s claim, is affirmed.
The original evidence is very strong to prove that the shipment made-by Dalgleish & Frame was entirely a consignment. The whole letter of the 13th of July confirms this idea. It is scarcely credible, that the property of Dalgleish & Frame would have been placed on the list of consignments, without a note upon it, had it been shipped on joint account. The hurry of business will not excuse or account for this omission. The proposition of Dalgleish & Frame is stated to have been made on the 27th of June, and to have been accepted on the 1st of July. The letters of Thompson to Steele are written on the 13th and 17th of July, when this shipment is treated as being altogether a consignment. The hurry could not have been such as to account for a mis-statement of the fact. There is, too, something mysterious in the manner in which the papers, offered as additional proof, reached Mr. Steele. That they should not have been accompanied by a letter, nor bear any marks of coming from abroad, is singular. *Further proof * is not admitted, and the sentence is affirmed.	*-
Wednesday, March 16th. (Absent, Marshall, Ch. J.) Washington, J., as to the opinion of the court on the question of lien, referred to the opinion delivered in the case of The Frances (Irvin’s claim, post, p. 418), which he said was precisely within the principle of the present case.
Sentence affirmed.
The Frances, Boyer, Master: Graham’s claim.
Prize.—Further proof.
Where the affidavits produced on the order for further proof are positive, but their credibility impaired by the non-production of letters mentioned in the affidavits, a second order for further proof will be allowed, in the appellate court.
This case, like the preceding, was an appeal from the Curcuit Court of Rhode Island : and the claim of John Graham, the appellant, was to certain other goods by the same ship, the Frances, captured and carried into Rhode Island, as stated in the case referred to, by the Yankee privateer.
Harper, for claimant : Pinkney and Dexter, for the captors.
The material facts of the case, and the substance of the argument on
213
348	SUPREME COURT	[Feb’y
The Frances.
both sides, are stated in the following opinion of the court, (a) delivered March 12th, 1814, by—
Marshall, Ch. J.—John Graham, a merchant of New York, claimed sundry parcels of goods shipped on board the Frances, as his sole property. The goods were shipped by William Graham & Brothers, merchants, of Glasgow, on account and risk of John Graham, merchant, of New York.
There are *two bills of lading, each filled up with the name of John
J Graham. There are also two invoices, each headed with the name of William Graham & Brothers as shippers, and stating the goods to be shipped on account and risk of John Graham. The first of these invoices is marked in the margin thus, W. G. I. P. and the other thus, [G.] There were also two lists of goods. The first headed, “ List of goods shipped by the 'Frances, for Messrs. John Graham & Co., New York.” This list is marked W. G. X I. P. The other is headed, “ List of goods shipped by the Frances, for Messrs. Peter Graham & Co., Philadelphia.” These goods are accompanied by two letters, dated the 15th and 16th of July, signed William Graham & Brothers, the first addressed to Messrs. John Graham & Co., and the last to Messrs. Peter Graham & Co. The letter to John Graham & Co. treats of their trade generally, and contains only the follow- . ing allusion to this shipment: “ You have herewith the ship Fanny’s accounts, to which refer; also invoice of sundry goods per Frances ; we hope they may go to a good market. We expect you will have about one hundred packages of English goods. There will be somewhat more to Philadelphia.” The letter to Peter Graham & Co. is also a general letter on the subject of their trade. It contains the following passage respecting the shipments by the Frances : “We have shipped by Frances a few goods well selected ; we could not get almost any cluster seeds.”
The circuit judge directed the cause to stand for further proof. It appears from the affidavit of John Graham, that in the month of January, in the year 1809, he entered into a limited partnership with his brothers, William Graham and Peter Graham, who, as well as himself, are naturalized citizens of the United States. The business was to be conducted at New York, by himself, under the name of John Graham & Co. ; at Philadelphia, by Peter Graham, under the name of Peter Graham & Co.; and at Glasgow, . by William Graham, under the name of William Graham & Brothers. That, from the commencement of the partnership, he has been in the con-*3501 s^an^ habit of carrying on extensive *business, with the knowledge of
J his partners, on his private account, and also in connection with others. That the investment and disposal of the funds of the deponent, together with the management of the mercantile concerns of the firms composed as aforesaid, and the commission business, were the principal if not the sole business of William Graham & Brothers, at Glasgow. That, from the intimate knowledge they possessed of each others’ affairs, and in consequence of their connection as brothers, the distinction between his firm and his private character was not always preserved. It was the less attended to, because the affairs of the Company and his individual concerns were frequently the subjects of the same letter, and it became the more usual to address him by the style of the firm, because there are several other persons
(a) Livingston, J., was absent, when this opinion was delivered. 214
1814]
OF THE UNITED STATES.	350
The Frances.
of the same name in New York. He adds, that in making shipments on the sole account of the deponent, William Graham has been in the habit of assorting the whole into invoices of small quantities, calculated to suit the generality of purchasers in the New York market, and also that the goods in any one of the said invoices might be sold entire, or transshipped to Philadelphia, or any other market, with the original invoice accompanying the same, as such original invoice would inspire more confidence in the buyers. This circumstance occasioned the lists of property shipped by the Frances, and one of them to be addressed to Peter Graham & Co. He swears, in the most positive and precise terms, that the property is entirely his own, and was purchased with his private funds in the hands of William Graham.
William Black deposes, that he has been long and intimately acquainted with John Graham, who is a man of fortune and character, and has been in the habit of transacting much of his own business in the said Graham’s counting-house. That, from his knowledge of the affairs of the said Graham, he verily believes, that the said Graham, both before and since the war, has been in the habit of doing business on his private account, and has received many shipments in which neither of his brothers were interested. He has been concerned with the deponent, as part-owner of vessels, in which the deponent believes that neither William nor Peter Graham held any share. *Isaac Belt and David Dunham, merchants of New York, swear to facts similar to those stated by William Black.	L
Charles Graham, of a different family from the claimant, swears, that in the year 1811, there were, according to the directory, six persons of the name of John Graham, in New York, one of whom was the deponent’s father; and that mistakes were frequently made respecting each other’s letters which came through the post-office.
William Hill, principal clerk of William Graham & Brothers, deposes to the different concerns, and to the nature of the business transacted by William Graham & Brothers, as stated in the affidavit of John Graham. That they had under their care ships and vessels in which John Graham alone was interested. That since an early period in the year 1811, the concern of William Graham & Brothers have not shipped any goods whatever, for or on account of the said copartnership, to either of their said establishments, or in any other manner whatsoever. That vessels continued to arrive, particularly the Trident, the Fanny and the Cuba, to the charge of the said William Graham & Brothers, for the account and risk of John Graham, in which ships and cargoes the said copartnership, or the said William Graham, had no share or interest whatsoever. The deponent has seen sundry letters from the said John Graham to the said William Graham & Brothers, to invest the moneys arising from the freight and cargoes of those ships, in goods, in behalf of him, the said John Graham, so soon as the British orders in council should be revoked ; and until then, to place the amount to his private credit in the books of William Graham & Brothers, which was done by the deponent as clerk. That this money was invested in the goods shipped by the Frances and other vessels, which were shipped on the sole account of John Graham, and were so entered on the books, by the instructions of William Graham. He states the practice of dividing shipments into small invoices, as is stated in the affidavit of John Graham.
215
351	SUPREME COURT	[Feb’y
The Frances.
Peter Graham swears that he has not, and never had, any interest in the *3”21 goods dipped by the Frances. That *John Graham has been in the -* habit of transacting business on his own account, with the knowledge of his partners, and has frequently consigned his separate goods to Peter Graham & Co. William N. Steele, clerk of Peter Graham, deposes to the same facts ; and founds his belief that Peter Graham had no interest in the goods shipped by the Frances, on his knowledge of the business of the house. William Graham states in detail, with great explicitness, the circumstances narrated in the affidavits of John Graham and of William Hill, his principal clerk, and avers most solemnly that the goods shipped by the Frances, were the sole property of John Graham.
The court below directed restitution of two-thirds of the cargo, as being -the property of John and Peter Graham, and condemned one-third, as being the property of William Graham. From this sentence of condemnation, John Graham has appealed ; and from so much of the sentence as directs a restitution of one-third as the property of Peter Graham, the captors have appealed.
It is certainly a rule in prize courts, dictated by good sense, and calculated to promote the purposes of justice, that letters accompanying the cargo, written in good faith, in the prosecution of a fair and honest business, should have great influence in ascertaining the real proprietors of it. The letters on board the Frances are of this description. They are such as would be written, if the goods were really the property of the company ; but such as could scarcely have been written, if the goods were the sole property of John Graham. Had they been his sole property, it must have happened, that some expression would have been found in the letters indicating the fact. Men who write carelessly and without design; may not be very explicit; but it rarely happens, that they entirely conceal the truth. There will be some allusion to it.
If the goods were the sole property of John Graham, why address a letter to Peter Graham & Co. ? The .affidavits account rationally enough for making up separate invoices ; but addressing a letter to Peter Graham & *3531 ^o., ^Philadelphia, by a vessel destined for New York, has very
.J much the appearance of a shipment destined for the company at that place, and not for John Graham, of New York. The expressions of that letter favor the same idea. “We have shipped you, by Frances, a few goods, well selected.” These cannot well be the goods of John Graham. The language is surely not such as would be used in that state of things. “We could not get almost any cluster seeds.” These expressionshave a necessary reference to some letter of orders from Peter Graham, mentioning cluster seeds among the articles directed to be shipped.
The affidavits produced on the order for further proof, are too positive to be disregarded, without considerable reluctance and hesitation. There are, however, certain rules of evidence, the authority of which is admitted in all courts. One of these is, that if a written paper be referred to, which paper is in the power of the party, it ought to be produced. The affidavits of William Graham and of William Hill state expressly, that letters had been received from John Graham, directing the disposition of cargoes shipped from America, on his own account, and ordering the proceeds to be invested in British manufactures, also on his own account, so soon as the
216
1814]
OF THE UNITED STATES.
The Frances.
353
British orders in council should be repealed. Why are not these letters produced ? It is impossible not to perceive their necessity. Mr. John Graham must have copied these letters into his letter-book. Why has he not furnished some evidence of this fact. His letters must have been answered by William Graham, more explicitly than in that which was found on board the Frances. Why is no one of those letters produced ? It is impossible to account for the fact, that no one of these letters is an exhibit in the cause. The court feels itself bound, judging on this evidence, according to the rules of law, to consider the goods as the property of the company.
But it is urged, on the part of the claimant, that if permitted to give further proof, he will produce the correspondence and such other proof as will be entirely satisfactory to the court. Several circumstances exist in this cause to induce the court to allow still further time for the production of such further evidence as may place the transaction beyond any doubt. The cause is ordered to stand for further proof.
*The Frances, Boyer, Master: Dunham & Randolph’s claim. [*354
Prize goods.—Further proof.
A case of further proof. Goods, shipped by a British to an American house (partly in conformity with orders, and partly without orders), who had an option to accept or reject the whole invoice, in a limited time, remain the property of the shippers, until the election be made to accept them.
This is another case of goods by the Frances, captured by the Yankee, and condemned in the Circuit Court of Rhode Island, brought up to this court on appeal. (Reported below, 1 Gallis. 445.)
Messrs. Dunham & Randolph, merchants, of New York, claimed three bales and nineteen boxes of goods shipped by Alexander Thompson, of Glasgow, a British subject, and consigned to Dunham & Randolph. The biil of lading is in theii’ names, and the invoice purports to be on their account and risk. A letter from Thompson to Dunham & Randolph, dated Glasgow, 11th July 1812, after describing the goods, and the labor he had employed in the business, and stating that the goods were sent partly in the Fanny and partly in the Frances, says, “ I have exceeded in some articles, and have sent you others, not ordered.” “ I leave it with yourselves, to take the whole of the two shipments, or none at all, just as you please. If you do not wish them, I will thank you to hand the invoices and letters over to Messrs. Falconer & Co. I think twenty-four hours will allow you ample opportunity for you to make up your minds on this point; and if you do not hand them over within that time, I will of course, consider that you take the whole.”
On the 15th of July, Alexander Thompson again wrote to Dunham & Randolph a letter, in which he mentions the information that a bill declar-• ing war had passed the hous§ of representatives. He then adds, “ considering the circumstances of the times, I thought it best to inform Messrs. Falconer, Jackson & Co. fully of the conditions on which I have shipped you the goods by the Fanny and Frances.” In a letter to Messrs. Falconer, Jackson & Co., of the same date, he explains, in full, the proposition he had 217
354	SUPREME COURT	[Feb’y
The Frances.
made to Dunham & Randolph, and directs how those gentlemen are to act for him, should Dunham & Randolph reject the consignment.
*3551 *This property was condemned in the courts below, and from
-1 the sentence of condemnation, the claimants appealed to this court.
Pinkney, for the appellants.—This is a mere question of fact as to property. Were or were not the goods the property of the enemy ? We contend, that they were not. All the documentary evidence shows the property to belong to Dunham & Randolph. The condition mentioned in Thompson’s letter of 11th July, was a condition subsequent. The property vested in the claimants, liable to be divested, if rejected by them within twenty-four hours after receiving the letter. The greater part of the goods, if not the whole, was shipped by order of the claimants, long before the sailing of the vessel. The delivery to the master of the ship was an execution of the order. The shipper had no longer any control ovei’ the property, except, in case of the insolvency of the consignees, in which event, he might stop it in transitu. Every circumstance connected with the transaction appears to be perfectly fair ; and if the evidence now before the conrt is not sufficient to support the claim of the appellants, it is a case for further proof. The claimants had accepted the shipment by the Fanny, before the capture of the Frances, and thereby rendered certain what was before optional. They thereby bound themselves to take the shipment by the Frances.
Hunter, contra.—The goods in question were not shipped according -to order, as appears by Thompson’s letter of 11th July. They belonged to the shipper, until the consignees had elected to take them ; and they could not make their election, before the arrival of the Frances. At whose risk were the goods, while at sea ? Thompson had no power to impose the risk on the claimants. If the goods had arrived at Boston, they might have been attached as the property of the shipper. If attached *as the prop--* erty of the claimants, they might have said the goods were not their property ; or if they had been sued as garnishees of Thompson, they might have said, they owed him nothing. They were not bound to accept the goods.
If the property, at law, belonged to Thompson, d fortiori, in a case of prize. It is a rule of prize courts that, in time of war, no future election shall be allowed to change the right of property at sea, in transitu. The question is, in whom is the legal estate ? At whose risk were the goods passing at the time of capture? The Packet de Bilboa, 2 Rob. Ill, 133 ; The Danckebaar Africaan, 1 Ibid. 90, 107 ; The Jan Frederick, 5 Ibid. 115, 128 ; The Vrouw Margaretha, 1 Ibid. 283,- 336 ; The Josephine, 4 Ibid. 21, 25 ; The Aurora, Ibid. 180, 218 ; The Carl Walter, Ibid. 170, 207 ; The Carolina, 6 Ibid. 337 ; The Copenhagen, 1 Ibid. 243, 289. These cases all go to prove that, during war, property cannot change in transitu.
Dexter, on the same side.—In this case, there was no contract to change the property. To constitute a contract, the assent of both parties is necessary. The goods were not shipped according to the order of the claimants, and a condition was annexed. The property never vested in the claimants : It was only to vest in them, on condition that they failed to deliver over the goods to Messrs. Falconer & Co.
Pinkney, in reply.—The further proof which the claimants would offer, 218
1814]	OF THE UNITED STATES.	356
The Frances.
will show that almost all the excess of goods beyond the order, was on board the Fanny. Here was a direct consignment to the claimants ; the goods were delivered to their agent, the master of the vessel ; the documents were all | sent to the consignees ; no change of property in transitu was necessary ; 1 the property was already vested in the claimants : and, upon its arrival, they might have asserted their right to it. So far as the goods comported with the order, the contract was *certainly executed : there can be no doubt about those goods; the claimants might have maintained trover or L replevin for them.
This was not the sort of shipment described by Sir W. Scott, in the cases cited. Thompson, the shipper, was a naturalized citizen of the United States : this appears in other cases before this court ; and that fact constitutes part of the further proof which we wish to introduce. There was no knowledge of the war, in this case. The transaction was not shaped by the expectation of war ; Thompson did not believe that war would take place, and he gives his reasons. The shipment was directed on the 11th of July ; between that and the 15th, the intelligence of the war was received.
Saturday March 12th, 1814. (Absent, Livingston, J.) Marshall, Ch. J., after stating the facts of the case, delivered the opinion of the court, as follows :—It has been argued for the appellants, that, by the invoice and bill of lading, and the true construction of the letter of Alexander Thompson, the property was vested in Dunham & Randolph, liable to be divested by their rejecting the consignment, within twenty-four hours after receiving the letters ; that the condition annexed to the transfer, is subsequent, not precedent. The court cannot concur in this reasoning.
It has been very truly urged for the captors, that to vest this property in Dunham & Randolph, a contract is necessary ; and that to form a contract, the consent of two parties is indispensable. In this case, no such contract appears. Had Thompson, in execution of the orders of Dunham & Randolph, consigned to them, unconditionally, such goods as they had directed, the contract would have been complete ; and the goods would, on being shipped, have become the property of Dunham & Randolph. But Thompson has not done this. With the goods which were ordered, he has consigned other goods, expressly stipulating that Dunham & Randolph shall not take the goods they had ordered, unless they consent to take the whole quantity put on board both vessels. This, then, is a new proposition, on which Dunham & Randolph *are at liberty to exercise their discre-tion. They may accept or reject it; and until they do accept it, the *• property must remain in Thompson. The sentence of condemnation, therefore, in this case, was warranted by the evidence before the circuit court.
But the claimants pray an order for further proof ; and say, that, before the capture of the Frances, the Fanny had arrived, and Dunham & Randolph had consented to take both cargoes. This application is opposed, on the principle, that were the fact even true, as alleged by the claimants, belligerent property cannot change its character in transitu. Reserving any opinion on the law of the case, until the facts alleged shall be substantiated, if it shall be in the power of the claimants to substantiate them, the cause is ordered to stand for further proof.1
1 For a further decision on this claim, see 9 Cr. 183.
219
358
SUPREME COURT
[Feb’y
The Frances, Boyer, Master : Kennedy’s claim.
Prize.—Question of fact.
This was likewise a case of goods by the Frances, condemned in the Circuit Court of Rhode Island. They were claimed by Duncan Kennedy, an American citizen, who appealed to this court. The case was submitted to the court, without argument.
Saturday, March 12th, 1814. (Absent Livingston, J.), Marshall, Ch. J., delivered the opinion of the court, as follows :—Duncan Kennedy, surviving partner of the house of George Stayley & Co., merchants, of New York, *3 591 claim8 eight boxes of merchandise, part of the cargo of the ship
J Frances, as his property. *The invoice is headed—
“ Glasgow, 8th July, 1812.
“ Messrs. George Stayley & Co.
Receive from James Smith.”
A letter from James Smith to George Stayley & Co., in speaking, of the goods, terms them “ our goods,” and does not, in any manner, indicate that they are the goods of Stayley & Co. He concludes his letter with saying, “ As it is to be hoped the trade will now open, I shall expect your instructions, saying what goods are best suited for the market.” The bill of lading is filled up with the name of George Stayley & Co., “ on account and risk as per invoice.”
There are several letters from George Stayley, in Glasgow, to his father ; but none of them indicate an opinion, that the property of the goods was in George Stayley & Co. The sentence, condemning these goods, must be affirmed.
Sentence affirmed.
The Frances, Boyer, Master : French’s claim.
Prize goods.—Change of property.
An intention, clearly proved, of a consignor of goods, to vest the right of property in the consignee, is not sufficient to effect such a change of property, until the goods are received by the consignee, or some evidence is given of his agreement to take them on his own account ; until that time, the goods are at the risk of the shippers ; and if they are enemies, the goods, if captured, are good prize.
No difference, though the consignee were the agent of a third person, who had directed him to order the goods, unless it appears that he actually did order them.
This, like the former cases of the Frances, was an appeal from the United States Circuit Court for thé Rhode Island district.
William French, the appellant, a citizen of the United States, claimed fourteen boxes of merchandise shipped on board the Frances, by James Auchincloss, of Paisley, in Scotland, to A. &. J. Auchincloss, of New York, on their account and risk, with orders to remit the proceeds to the shipper *3601 ^or Payment’ The claimant *alleged, that the goods had been pre-
-* viously ordered by him through A. & J. Auchincloss, to be imported on his account and risk.
Further proof was ordered by the court below, to consist of the original order for the merchandise, and all the letters and correspondence relating to 220
1814]	OF THE UNITED STATES.	360
The Frances.
it, and of all the proofs of property in the claimant. Under this order, the claimant produced a letter, dated Baltimore, 20th February 1812, signed by himself, and addressed to A. & J. Auchincloss, requesting them to order from their friends in Scotland, goods not exceeding in value 10004 sterling, to be shipped so soon as the orders in council should be revoked. On the 20th of September 1812, A. & J. Auchincloss wrote a letter to the claimant, advising him of the capture of the Frances, with the goods, said to be shipped on his account, to their address, and desiring him to take the necessary steps to have his property cleared.
To these letters were added affidavits of the claimant, tending to prove the property in him, together with an affidavit of Darius Hodson, that he forwarded the above last-mentioned letter to the claimant, at Providence, by his request; and that, when he took it from the file, it was a whole sheet directed to the claimant from New York, by J. Auchincloss, jun.; but that, in order to save postage, he, the deponent, tore off the outside leaf, not thinking, at the time, of its being of any importance. Upon this proof, the claim was rejected in the court below, and the property condemned to the captors.
In this court, the cause was argued by Jones, for the appellant, and Dexter, for the captors ; and on—
Tuesday, the 15th of March 1814 (absent, Marshall, Ch. J.), Washington, Ch. J., delivered the following opinion of the court:—*This is i-*««-. the claim of William French to a part of the cargo of the Frances, L shipped by James Auchincloss, of Paisley, in Great Britain, to A. & J. Auchincloss, of New York, on their account and risk. By the correspondence between the consignor and consignees, which was exhibited to the court below, under an order for further proof, it is somewhat doubtful, whether these goods were to be sold as the property of the consignor, or of the consignees. In the letter from the former to A. Auchincloss, dated the 17th of July 1812, he says, “You will lose no time,to transmit,immediately on the receipt of the invoice by the Fanny, as well as by the Frances, to the full amount of the invoices ; as thereby, and no other way, is your credit and John’s to be restored here. Also remit, as I have often told you, to clear off your old debt: and, for God’s sake, let us have no more failing in the family. You will observe, that the goods per Fanny and Frances are principally bought upon a credit of three, four and five months ; this the consequence of failing.”
In another letter, of the same date, from the same to the same, he says, “ By this ship, the Frances, I have shipped you fourteen boxes of different kinds of goods, which I beg you will lose no time to dispose, as by early remittances, you will undoubtedly strengthen your credit.” In another part of this letter, he says, “ I beg you will lose no time to remit largely, say 3 or 4000 pounds. Remember the old cash account with the Paisley Banking Company.” These letters, so far as they throw light upon this transaction, intimate very strongly that A. & J. Auchincloss were to dispose of these goods upon their own account, and as the purchasers of them. But to produce a change of property from the shipper to the consignee, it was essentially necessary, that the goods should have been sent, in consequence of some contract between the parties by which the one agreed to sell, and the
221
.361	SUPREME COURT	[Feb’y
The Frances.
other to buy. Had the language of these letters been more explicit than it is, to prove that the intention of the consignor was to vest the right of property in the consignee, it would not have been sufficient to effect such a change, until the goods were received, or some evidence given of the agreement of the consignee to take them on his own account. No order from A. & J. Auehincloss to the *consignor of this cargo, authorizing the -1 shipment of it, was produced, or offered to be produced, in the court below ; and this court, therefore, is warranted in believing that none such was ever given. Indeed, no interest whatever in these goods is asserted to have existed in A. & J. Auehincloss, but the same is claimed by William French, a citizen of the United States, who, under the order for further proof, produced, in support of his claim, a letter from himself to A. & J. Auehincloss, dated the 20th February 1812, in which he requests them to order from his friends in Scotland, a quantity of goods, enumerated in the letter, not to exceed 1000Z. sterling, to be shipped as soon as the orders in council should be revoked, and adding, that he should consider the goods at his risk, from the time they should be shipped ; also an invoice of these goods, sent by A. & J. Auehincloss to William French, together with a letter from them, dated the 20th of September 1812, advising him of the capture of the Frances, with the goods shipped on his account, and recommending it to him to take the necessary steps to vindicate his right to the property. This letter made its appearance in the court below, with the outer leaf, on which the post-mark would have been placed, had there been any, tom off. To do away with the suspicion which this circumstance might well excite, the affidavit of Darius Hodson was produced, in which he states that he forwarded this letter to the claimant, at Providence, having first torn off the outer leaf, with a view to lessen the rate of postage.
The affidavit of the claimant is added, which is fully to the purpose of supporting his interest in these goods, so far as his order to A. & J. Auchin-closs can vest such an interest in him. But passing over those observations which might fairly be made upon the mutilated state of the letter from A. & J. Auehincloss to the claimant, and the suspicious manner in which that circumstance is attempted to be explained, it may be observed, that the claim of William French is in no respect stronger than if it had been made by A. & J. Auehincloss. Admit, that he wrote to A. & J. Auehincloss the letter of the 20th February 1812, and received from them that of the 20th of September, the inquiry still remains to be answered, where is the order *3031 ^or *sbipment from A. & J. Auehincloss as the agent of the J claimant? The truth is, that in whatever light this question is viewed, these goods were at the risk of the shippers, until they should be received by the consignee ; and consequently, were, by the capture, made good prize, as property belonging to the enemy.
Sentence affirmed.
222
1814]
OF THE UNITED STATES.
363
The Frances, Boyer, Master: Gillespie’s claim.
Prize.—Domicil.
The commercial domicil of a merchant, at the time of the capture of his goods, determines the character of those goods—hostile or neutral.
This also was an appeal from the sentence of the Rhode Island Circuit Court, condemning certain goods captured on board the Frances, by the Yankee privateer.
These goods were shipped by Colin Gillespie, the claimant, who had been naturalized in the United States, and consigned to Archibald Bryce and Alexander Muirhead, for sale and remittance to the shipper, at Glasgow.
To ascertain the national character of the claimant, further proof was ordered by the court below, calling upon him to show how long, after his naturalization, he resided in the United States, before he went to Great Britain ? how long he had since resided in the United States, at any time or times ? how long in Great Britain ? what was the nature of his business in the latter country ? and in whom the property vested at the time it was shipped ?
Upon the production of this further proof, it appeared, that the property was vested in the claimant, at the time of its being shipped ; that he was a native of Great Britain ; that he emigrated to the United States in 1793 ; was naturalized in 1798; having, in the interim, returned to his native country, on mercantile business, in 1794 and 1796, and revisited the United States in 1795 and 1797 ; that he again returned to his native country in 1799, was there married and revisited the United *States, with his wife, in the same year; that he continued to reside in New York L until June 1802, when he once more returned to Great Britain, and resided there until November 1805, when he came to the United States (Mrs Gillespie having died in Scotland), formed a partnership with John Graham, of New York, and returned to Glasgow, in the same year, where he carried on the business of the partnership, under the firm of Colin Gillespie & Co.; that he remained there until the partnership was dissolved, and until the 2d of July 1813 ; on which day, he left the enemy’s country, and arrived in the United States with his family, in October 1813 ; that he kept house at Glasgow, and built a warehouse there, which he still owns, and kept his counting-house therein. He formed a determination to return to the United States, as he deposes, on being informed of the declaration of war by the United States against Great Britain, which took place on the 18th of June 1812, and was known in England, about the 20th of July following, but was prevented, by his engagements and commercial concerns, from carrying that intention into effect, until the period above mentioned, still leaving some of his affairs unarranged.
Upon this evidence, the property was condemned in the circuit court; and an appeal was taken, by the claimant, to this court, where the cause was argued by Jones, Harper and Dexter, for the claimant; and Pinkney, for the captors.
Jones, for the claimant.—The goods in question were purchased early in July 1812, they were shipped on the 14th of that month, at which time, the declaration of war was not known in England. It does not appear, that the 223
364	SUPREME COURT	[Feb’y
The Frances.
claimant shipped any other goods than those in question. In less than a yeai- after he had received information of the war, he returned to the United States, with his family, thereby giving unequivocal evidence of the quo animo of his residence in Great Britain. In such a case, even the property of a neutral would be protected ; d fortiori, ought the property of one of our own citizens to receive protection. Cases of this kind are analogous to cases °f confiscation. If there be any particular period at which *we
J can consider this property as assuming a hostile character, it must be that, at which it would have been confiscable by the enemy, supposing the party to continue an American citizen. Had that period arrived ? Were the circumstances such as would have justified Great Britain in confiscating this property ? If not, surely the United States ought not to condemn it. Vattel, lib. 3, § 63.
This case may be considered in another point of view, viz., whether the case of a naturalized citizen returning to his native country, and carrying on trade, as in the present case, is distinguishable in its consequences, in the event of war, from that of a native citizen going to a foreign country and engaging in trade. We contend, that it is not. One authority, and one only, seems to favor the distinction ; and that is the case of La Virginie, 5 Rob. 99. But in that case, it does not appear that the American character of Mr. Lapierre was acquired by naturalization. It might and very probably did depend on domicil alone. We contend, that a person naturalized in this country, is as much a citizen of the United States, to all the intents and purposes of the present case, as a native. The naturalization law of the United States requires of the applicant for the privileges of naturalization, unqualified abjuration of allegiance to his former sovereign. The law of England on the subject goes to an equal extent. Naturalized and native subjects are looked upon as the same, to all legal purposes. Daw-son's Lessee v. Godfrey, 4 Cr. 321.
A denizen may be made such for life or in tail; “ but one cannot be naturalized, either with limitation, for life or in tail, or upon condition ; for that is against the absoluteness, purity and indelibility of natural allegiance.” Co. Litt. 129 ay 2 Domat 376.
If, according to the doctrince of perpetual allegiance, on the return of a naturalized citizen to his native country, his former duties return, and his duties to his adopted country still continue, under what contradictory obligations would he be placed. This was Lord Hale’s doctrine, but it is now done away. Foster’s Crown Law 185, § 4. *It has been decided, in $ J England, in the case of Marry at v. Wilson, 1 Bos. & Pul. 430, that a natural-born subject of that country admitted a citizen of the United States of America, either before or after the declaration of American independence, may be considered as a subject of the United States, so as to entitle him to trade to the East Indies, under the 13th article of the treaty of 19th November 1794.”
Harper, on the same side, asked, whether the court, in the case of The Rapid, had decided the question, as to the difference between the British acts concerning letters of marque, prizes and prize goods, which authorize the capture of the property of inhabitants in hostile countries (and on which the British admiralty decisions are founded), and the act of congress 224
1814]
OF THE UNITED STATES.
The Frances.
366
declaring war, which only gives a right to capture the property of British subjects.
Johnson, J., said, the court had fully considered that point and decided it in the case of The Rapid (ante, p.-155).
Pinkney, for the captors.—We contend, that the property even of a native American citizen, domiciled in an enemy country, at the time of the capture of such property, is liable to condemnation as prize of war ; and, ct fortiori, the property of a naturalized American citizen, a native of the enemy country, under like circumstances ; which is the case before the court, and which will be first considered.
It has been contended on the other side, that a person naturalized in the United States is as much a citizen of this country as a native, and that he continues to be so, though he return to his native country and there engage' in trade. It has been argued, that in order to become an American citizen, he must abjure his allegiance to his former government, that, consequently,, though he should return to his native country, he can no longer be considered as under the protection of that government: that his new allegiance tO’ the United States continues, and that our government is bound to protect him : that he is, therefore, to be considered in the *same light as a native citizen, and that his property is equally to be protected in case *-of war.
That a person so abjuring his native allegiance cannot claim protection from his former government, while he continues in the country of his adoption, is admitted ; but we contend, that if he voluntarily returns within the sphere of his original allegiance, he is as much a subject of his former government, as if he had never emigrated ; that the reciprocal duties of allegiance and protection, on the respective parts of the subject and the sovereign, are revived : he is no longei* a citizen of the United States. The two allegiances are incompatible, we admit ; the naturalization law of the United States clearly goes upon this idea ; but in case of the party’s return to his native country, it is the old allegiance which must prevail, and not the new, as is contended by the claimant. By his return, he has, in fact, consented to resume his former allegiance : for he must be presumed to have known the laws of his country, and that those laws would impose upon him his old duties in case of his return. He is now, as Sir W. Scott would call him, a redintegrated subject of his native country, and is liable to all his former obligations. He is now bound actively to support the government to which he has returned. In case of war he may be compelled to take up arms against the country he has adopted ; to pay taxes for the support of the war, &c., and this, not by arbitrary power, but of right. These obligations, it will be recollected, we contend, are the effect of a voluntary return. We do not mean to say, that if a naturalized citizen should enter the army of the United States, and be captured by the nation to which he formerly belonged, during a war between the two countries, he would, on being carried to his native country as a prisoner, incur those obligations. But in the case now before the court, the return of Gillespie, the claimant, to England, was entirely voluntary. Without regard, therefore, to the question of domicil, Gillespie was, according to the doctrine for which we have been contending, politically an enemy of the United States, at the time of the capture of the
8 Cranch—15	225
367	SUPREME COURT	[Feb’y
The Frances.
Frances. If he was not an enemy, I should be glad to know, who can be considered as such. If he is not hostis, who has every hostile duty upon him, I am at a loss to know who is.
*36R1 the war ha<^ been sudden, humanity might plead in behalf of
■* the claimant. But in this case, there was no surprise. War had been threatening for a long time previous to its actual declaration. No indulgence, therefore, on this ground, can be claimed.
The counsel for the claimant has cited Lord Coke in support of his doctrine of naturalization, but does not seem to have considered that, according to that author, a British subject can never become a citizen of any other country. The case of Marry at v. Wilson has also been cited. That case is, perhaps, entitled to some consideration ; but even there, the court had, at first, decided against Collet, and it was only upon the request of the American minister (Mr. King) that they consented to reconsider the case, when they finally decided in his favor.
2. If Gillespie was politically an enemy, at the time of the capture, the doctrine of commercial domicil is wholly immaterial in the present case. But as the court may not view the subject in the same light as we do, a few remarks on the latter point may not be unnecessary. We lay it down, then, .as an indisputed position, that the character of captured goods is decided by the commercial domicil of the owner, at the time of capture. And we contend, that Gillespie had a commercial domicil in Great Britain, at the time of the capture of the goods in question. It does not appear, that he had, in any manner, put himself in motion—in itinere, to return, before the capture. All the evidence, showing his intention to return, arose after that event. A ^hostile character, therefore, attached to the property, if not to the owner.
This is not a case of withdrawing funds : it is a case of trade, originating before the war, and continued after the war. Besides, the rule of with-.drawal applies only to cases where the domicil of the party is not in the .enemy country, though his trade is carried on and his property situated ithere. See Coopman's Case, cited in The Vigilantia, 1 Rob. 12, 14 ; *3691 Escott's Case, cited in The Hoop, *Ibid. 170,201; The Madonna delle
-* Gracie, 4 Ibid. 161, 195.
It has been said, that at the time of the shipment of the goods in question, the war was not known in England, and that it would be a case of great hardship, under such circumstances, to subject this property to condemnation. But want of notice, in cases like this, is an excuse not known to the law of nations. See Whitehill's Case (referred to in the case of The Hoop, 1 Rob. 170, 201) : Whitehill was a British subject, had been at St. Eustatius only two days, and had no knowledge of the war, yet his property was condemned.
As to the fact, that public treaties frequently allow a particular time for the respective subject of both parties to withdraw in case of war, it may be observed, that this is only providing against the exercise of a right which the contracting parties would otherwise have had. But these mutual concessions do not alter the nature or effect of the domicil. At all events, Gillespie ought to have put himself in motion to return to the United States, immediately upon knowledge of the war. This he does not appear to have done : and according to Sir W. Scott, nothing but the 226
1814]	OF THE UNITED STATES.	369
The Frances.
actual force of the government is a sufficient excuse for the neglect. But no such excuse has been offered.
On either of the grounds, therefore, which have been taken in this argument, we conceive that the property in controversy must be condemned.
Harper, in reply.—It is the nature of the trade, not the place of residence, which determines the hostile or neutral character of the trader.
We must still insist, that a naturalized citizen of the United States is a citizen to every intent, the right to be president of the United States only excepted, which exception but proves the general rule.
It is said, on the part of the captors, that a naturalized *Ameri- pgyg can citizen ceases to be such, when he returns to his native country. L Suppose, then, while absent in his native country, a descent should be cast upon him in this—would he be considered by our courts as an alien, so as to deprive him of the estate so cast upon him ? Again, suppose, in case of war between the two countries, he should enlist himself under the banners of our enemy, and be found in arms against us, should we not consider him as a traitor, and treat him accordingly ? If he chooses to take such double responsibilities upon himself, it is his business to reconcile them : we can only consider him as an American citizen.
We might admit, perhaps, that by a return to his native country, in time of war, he must be considered as having abandoned his rights as a citizen of the United States, in relation to trade : still, however, he could not throw off his duties. But Gillespie returned in time of peace. He, therefore, did not assume new duties incompatible with those he owed to this country. He assumed only that temporary allegiance to the government of Great Britain, which every other stranger in that country owed. Upon the breaking out of the war, perhaps, new duties might arise, inconsistent with his duties as an American citizen. Yet, in that case, a reasonable time ought to be allowed him to remove ; and if he made every reasonable exertion to return to the United States, and especially, if he did actually return, in less than a year after being informed of the existence of the war, which is the fact, he must be considered as having retained his American character.
The domicil of the owner, at the time of capture, is not the criterion whereby to determine the character of the property captured, in all cases. If it be so generally, this case ought to be an exception. Gillespie was lawfully in England, at the breaking out of the war : he cannot be presumed to have known that war would take place ; it is impossible that he should have known it; such a presumption is unreasonable. ’WhitehiWs Case has been cited on the other side ; but the counsel for the captors is mistaken us to the facts of that case. Whitehill knew of the war, and that St. Eustatius was hostile, at the time he went there; which essentially distinguishes it from the case now before the court.
* Pinkney referred to the history of the times, to show that White-hill had no knowledge of the war, when he went to St. Eustatius. L
Harper.—If Whitehill did not know that war had actually been declared, he knew that measures had been taken which may be considered as equivalent to a declaration. The capture took place in February. He knew that 227
371	SUPREME COURT	[Feb’y
Vowles v. Craig.
letters of marque had been issued in December preceding, and that a long irritation had existed between the two governments. He knew also, that the trade in which he was engaged, was a trade frowned upon b.y his own government. In the present case, the circumstances were entirely different. 5 Rob. 220, 247.
Saturday, March 12th, 1814. (Absent, Livingston, J.) Marshall, Ch. J., delivered the opinion of the court, as follows :—Colin Gillespie, a naturalized American citizen, residing in Glasgow, claimed sundry goods, shipped on his own account, as his property. This claim depends entirely on his national character, and is decided in the case of The Venus (ante, p. 253). The sentence of the circuit court, condemning the property of the claimant, is affirmed.
Sentence affirmed.
Vowles and others v. Craig and others, (a)
Military land-warrant.
If a person who has obtained a survey, upon a military land-warrant, under the commonwealth of Virginia, for 2000 acres, sell and transfer, for a valuable consideration, his right to the survey, and assign the plat and certificate to the purchaser, whereupon, the latter obtains a patent for the land, in his own name ; and if, upon a resurvey, it appear that the grant conveys 2700 acres, the vendor cannot, in equity, support a claim for the surplus, against the vendee.1
This case, as stated by Todd, J., in delivering the opinion of the court was as follows : This suit was instituted on the chancery side of the Circuit Court of the United States for the Kentucky district, by the complainants, now appellants, as the heirs *and legal representatives of Mary
-* Vowles, formerly Mary Frazer.
The bill alleges, that in the year 1774, a survey was made for Mary Frazer, as heir-at-law and only daughter of George Frazer, deceased, by virtue of the governor’s warrant, and agreeable to the royal proclamation of 1763, for 2000 acres of land, in Fincastle county, on Elkhorn creek, the waters of Ohio river. That according to usual and customary allowance, made in this, as well as other military surveys, at that time, a considerable quantity of land, over and above 2000 acres, is contained within the actual boundaries. That in the year 1778, whilst the said Mary was a minor, Michael Robinson, as guardian of the said Mary, and who had intermarried with her mother, made a contract with the defendants Lewis, Joseph and Benjamin Craig, for the sale of the said 2000 acres of land surveyed as aforesaid for the said Mary, at the price of 30s. per acre, amounting to 3000Z. which was paid in the depreciated paper currency of Virginia, and was of little or no value. That the said Mary was induced to affix her signature to an assignment of the said plat and certificate of survey, which was post-dated so as to bear the appearance of its being executed when she was of full age ; in consequence of which, Lewis Craig obtained a patent for the said land, in his
(a) March 14th, 1814. Absent, Marshall, Ch. J.
1 See Livingston v. Barringer, 15 Johns. 471 ; VanWyckv. Wright, 18 Wend. 157; Macken-
228
tell v. Savoy, 17 S. & R. 104; Murphy v. Campbell, 4 Penn. St. 480; Davison v. Mills, 32 Id. 302.
1814]	OF THE UNITED STATES.	372
Vowles v. Craig.
own name, and has since conveyed a part thereof to the said Joseph and Benjamin, under whom the other defendants derive their titles. The prayer of the bill is to vacate the contract and to decree a reconveyance of the land, and for general relief.
The answers of the defendants, Lewis and Joseph Craig, admit the making'of the survey, and that it contains a considerable quantity of land within the boundaries, more than 2000 acres. They admit the contract with Michael Robinson for the purchase of the said survey ; but positively deny, that it was made in the year 1778, and aver that it was made in 1779. They deny, that the contract was for 2000 acres of land at 30s. per acre, but was for the whole survey, at the price of 3000Z. They also positively deny, that the assignment on the plat and certificate of *survey was post-dated, or that any fraud or misrepresentation was practised or used relative *-to the transaction. The answers of the other defendants are deemed immaterial to the investigation of the questions arising in this case.
The cause was heard in the circuit court, upon the bill, answers, depositions and other proofs. The court decreed the bill to be dismissed, with costs ; from which decree, an appeal was taken to this court.
Taylor, for the appellants.—On examination of the evidence exhibited, we are satisfied, that the allegation, that the assignment was made during the minority of Mary Frazer, is not sufficiently supported, to have authorized the circuit court to have decreed a reconveyance. But we suppose'the complainants were entitled to relief, in some shape, for the surplus land contained within the survey ; either by a decree for the reconveyance of the surplus, by a pecuniary compensation for it, according to its present value, or by a pecuniary compensation, according to the price at which the land was sold, op which interest should be allowed.
No evidence is introduced of the terms of the sale, whether by the acre or in gross, except the survey, assignment, power of attorney and receipt before mentioned, from these it plainly appears, that the parties contracted, on a supposition that the quantity of land sold and purchased was 2000 acres. The surplus of 700 acres (nearly one-third of the whole quantity supposed to be sold) cannot be considered as a small one, such as might arise from inaccuracy of instruments, &c., and therefore, within the contemplation of the parties.
The remote residence of the vendor, who had but lately attained full age, when she sold, precludes the idea of her having any information of the quantity of land to which she was entitled, other than that which was derived from the survey. On her part, therefore, and probably, on the part of the purchaser also, the contract was *made under an evident mis-take respecting the subject of sale. There is nothing discoverable in *■ the contract or exhibits, from which it can be collected, that the sale was made without responsibility for the quantity, the words, more or less, almost universally used to designate such an intent, are nowhere to be found. The case presented is that of a contract made under the influence of mistake, in both parties, as to a material and important fact, without fraud or concealment on either side.
It is supposed, that no difference exists between contracts for the sale of lands, and those of any other description : the same principles apply to all.
229
374	SUPREME COURT	[Feb’y
Vowles v. Craig.
This doctrine is recognised in the opinion expressed by the court of appeals in Kentucky, in the case of Young n. Craig (2 Bibb 270). In delivering that opinion, the court expressed itself as follows : “ The question in this case is, whether Craig, who had sold to Young a tract of land containing in its boundaries a surplus, has a right to recover such surplus, or in case it cannot be had, a compensation therefor in money. There is no novelty or peculiarity in the principles upon which questions of this sort depend. In contracts of this kind, the same good faith is required, and the same responsibility attaches to its violation, which law and reason prescribes in every description of contracts. If, through fraud or gross and palpable mistake, more or less land should be conveyed than was in the contemplation of the seller to part with, or the purchaser to receive, the injured party would be entitled to relief in like manner as he would be for an injury produced by a similar cause in a contract of any other species.”
The same opinion also establishes the principle that in sales in gross, as well as in sales by the acre, if the parties have contracted under manifest error as to quantity, the party injured is entitled to relief, unless indeed, the surplus'or deficit was small, not more than usual in such cases, and of course, supposed to be within the contemplation of the parties. In that case, it is true, the court refused to decree compensation for the surplus land sold, because it appeared plainly to have been the intention of the parties to risk *oh51 the gain or loss, and because the surplus *was not more than usual in ' ’ J such sales, (a) In the case of Young v. Craig, the court appears to
(a) The opinion of the court of appeals in Kentucky in the case of Young v. Craig, was as follows: The question in this case is, whether Craig, who had sold to Young a tract of land, containing in its boundaries a surplus, has a right to recover such surplus, or in case it cannot be had, a compensation therefor in money. There is no novelty or peculiarity in the principles upon which questions of this sort depend. In contracts of this kind, the same good faith is required, and the same responsibility attaches to its violation, which law and reason prescribe in every description of contract. If through fraud, or gross and palpable mistake, more or less land should be conveyed than was in the contemplation of the seller to part with, or the purchaser to receive, the injured party would be entitled to relief, in like manner as he would be for an injury produced by a similar cause in a contract of any other species. In this case,- however, there is no evidence of fraud ; and the only ground, from which an inference can be deduced, that there w’as such a mistake as would justify the interference of the court for the purpose of correction, is the surplus contained in the boundaries described by the deed. Whether this ground be sufficient to justify such an inference, depends upon the nature and terms of the contract.
Contracts for the sale of land may be considered of two descriptions. 1st. Where the sale is of a specific quantity, which is usually denominated a sale by the acre: and 2d. Where the sale is of a specific tract, by name or description, each party risking the quantity; and this latter, for sake of brevity, is sometimes called a sale in gross.
It is evident, that in a sale per acre, much less variation from the quantity intended to be conveyed, -would afford evidence of a mistake, which would justify the interposition of a court to correct it, than would be sufficient for that purpose in a sale of the other description. But even in a sale per acre, as from the roughness and unevenness of the ground, from the variation of instruments, and from the different results that will necessarily be produced by different surveyors, operating with the same instruments. it is impracticable to ascertain the quantity with perfect precision, a small deficit or surplus, however exactly the parties may have intended to be confined to a specific quantity, would not justify an application to a court of justice for relief. In
230
1814]
OF THE UNITED STATES.
375
Vowles v. Craig.
have adopted the principle laid down by Pothier in his Treatise on Obligations, ch. 1, art. 3, § 1, title Error, and also by the writers on natural law, “ that an error about a thing, or about its quality, upon prospect of which a man *is induced to come to any agreement, renders the agreement or r*g^g bargain void, for in such case, a man is not supposed to have agreed absolutely, but upon supposal of the presence of such a thing or quality, on which, as on a necessary condition, his consent was founded, and therefore, the thing or quality not appearing, the consent is understood to be null and ineffectual.” Pufferidorf’s Law of Nature and Nations, lib. 1, c. 3, § 12.
On these principles, as applied to this case, the complainants would be entitled to compensation, or the contract would be considered as void, unless it was in proof, that the surplus was not unusually great, and was not more than may reasonably be supposed to have been in contemplation of the parties. As the consideration of quantity does not appear to have been the operating motive which led to the contract, though it certainly influenced the price, according to the principles established by writers on natural law,
many cases, however, of sales of this sort, the parties did not intend to be very scrupulously exact with respect to the quantity. There was, particularly in the sales made at an early period of this country, great liberality of admeasurement, frequently allowed by the seller and expected by the purchaser. Where this was the case, to authorize a conclusion from the surplus contained in the boundaries of a tract, that there was a mistake of quantity, the surplus ought to be greater than was usual in conveyances made about the same period, and’ with the same intention of allowing liberal admeasurement. But as in some sales of an early period, and in, perhaps, a great majority of those of a more recent date, such a liberality of admeasurement was not intended by the parties, it would be obviously improper and unjust, to lay down any general rule as to the rate of surpluses that would justify an inference of a mistake which would deserve a correction. Each case must depend much upon its own particular circumstances. Whether such an inference would be authorized, in the present case, were the sale in question per acre, and not in gross, need not be determined, since we are of opinion it is of the latter description.
The deed of conveyance must be taken as conclusive evidence of the terms of sale, unless it had been shown, that language not comporting with the true intention of the parties had been inserted, through fraud or mistake, of which there is not the slightest indication in this case. The deed describes the land by its boundaries and situation, and as “ containing by survey, four hundred and twenty-five acres, be the same more or less.” The plain and most obvious meaning of the expressions, “be the same more or less,”, is, that the parties were to run the risk of gain or loss, as there might happen to be an excess or deficiency in the estimated quantity. This, it is believed, is the sense in which such an expression is uniformly understood by both the learned and the unlearned. This idea is not repelled by the expression of the quantity of acres ; on the contrary, it rather derives strength from the manner in which the quantity is mentioned, for it plainly indicates that the expression of quantity was used as matter of description only, and that it was the intention of the parties not to be confined to a precise and specific quantity.
We do not mean to be understood, that in a sale of this kind, the surplus or deficit might not be so great as to authorize an inference, that it had been produced by fraud or mistake; but in this case, where the estimated quantity was 425 acres and the largest quantity which any subsequent purvey -has made it is 481, the surplus does not appear so great as not to be within the reasonable limits of a risking bargain of this kind. See in support of this doctrine, Sugden 225-6; 1 Call 301. We are, therefore, of opinion, that the decree of the circuit court in favor of Craig was erroneous, and must be reversed, with costs.
231
376	SUPREME COURT	[Feb’y
Vowles v. Craig.
it would appear, that the error of the parties rather afforded a ground for a decree of compensation than for annulling the contract.
From an examination of the documents exhibited, it will clearly appears that the parties contracted under an opinion that the survey contained only $„^1 2000 acres, the survey itself specifies that quantity. The *power of
J attorney to Joseph Craig describes the land as 2000 acres, and the 'I receipt of Michael Robinson for the last payment, states it expressly to be in full for 2000 acres of land, the property of Mary Frazer. There is not an expression used which shows an intention on either side to make a risking bargain.
No evidence appears in the record, to show that military surveys do usually contain surplus lands, and it is supposed, without such proof, the court cannot take judicial notice of such an allegation. But if the court should recognise it, must it not also be admitted, that the surplus in this case (one-third) is much more than is usual ? The influence of error on the contracting parties being proved, it lies on the defendants to bring themselves within the exceptions stated in the case of Young v. Craig, by the exhibition of satisfactory evidence on those points ; this has not been done.
If the complainants are entitled to relief, the next inquiry is, how it should be granted. The object of the parties being a sale and purchase of 2000 acres of land, the contract being made for that quantity only, could Lewis Craig be compelled to receive and pay for more ? Let it be supposed, that he had made an improvident bargain, that the lands were not worth the price he gave, or that, since the sale, they had greatly depreciated in value, Mary Frazer or her representatives could, on no principle of equity, take advantage of her own error, to require payment for a greater quantity of lands than had come within the contract, and Lewis Craig might relieve himself by a conveyance of the surplus land.
As Lewis Craig was not exposed to the risk of depreciation in value, on principles of reciprocity, Mary Frazer and her representatives should be placed in the same situation, and should be entitled to a specific reconveyance, so far as it can be had, without affecting the rights of others. It appears from the proceedings, that Lewis Craig is still in possession and the owner of a part of this land, and that Joseph Craig, who was concerned in the purchase, holds another part; so far as these extend, a specific reconvey-*3781 ance may be decreed. As to the other *defendants, who appear to
J have been purchasers, and who, probably, had not notice of the latent equitable claim of the complainants, so as to affect them, it is not contended, that they can be compelled to convey. As to the quantity deficient, after the conveyance of the lands held by Lewis and Joseph Craig, a decree for pecuniary compensation, according to the present value, if the principles before stated are correct, is the appropriate relief.
If the court should be of opinion, tnat the complainants are entitled to their decree in respect to the surplus land, but should not consider the principles before stated correct, as to the manner in which it should be granted, no alternative seems to remain, but that of adopting the original price (said to have been $5 pei’ acre, and from calculation appearing to have been so) as the measure of compensation. The purchasers having had the use and received the rents and profits of the land should, as an equivalent, be decreed to pay interest, and an account should be decreed to ascertain the value of
232
1814]	OF THE UNITED STATES.	378
Vowles v. Craig.
the paper money, on the 20th December 1779, and the interest which has accrued.
The length of time which has been suffered to intervene may, perhaps, be considered as amounting to a waiver of the complainant’s equitable right, and be made an objection to a decree for relief in any shape. In reply to this, the following facts, which appeal’ on the record, are stated. That the defendants, soon after their purchase, removed to Kentucky, where they continued to reside; and that Mary Frazer and her representatives always resided in, or near Fredericksburg, in Virginia.
Bledsoe, for the appellees.—Craig purchased Mary Frazer’s interest, be it much or be it little. Her interest was • all he purchased, and all he could obtain. And as evidence of it, she assigned the plat and certificate of survey, that the patent might issue to Craig for whatever the survey contained. There was no mistake here. If Craig has got more land from the commonwealth of Virginia, than he ought to have had, is Mary Frazer or her representatives to step into the *place of the commonwealth, to correct the error or the fraud ? Or is she to step into Craig’s place, to defraud that commonwealth, or to take advantage of the error of its officer, because she once owned 2000 acres of land which she has parted with ? Had she carved and granted a definite interest out of her claim, retaining a part, the question might be differently settled. But in this case, she would be worse than a volunteer, who cannot be compensated in equity : she would be a volunteer maid fide. A complainant in equity must recover on the strength and soundness of his own title. It is not sufficient, that the defendant is in the wrong ; the plaintiff must have right.
If the claim of the complainants to any part of the land itself were to be sustained, where would you begin, on the survey, ta correct the error ? On which end, side or corner ? The beginning and ending corners of a survey are arbitrarily designated by the surveyor, when he makes out his plat and certificate ; seldom or never corresponding with the actual stages of process on the ground itself.
But as it was clearly the intention of the parties, that the whole should be sold, and as the evidence of the whole was transferred, the utmost that the complainants could, in any event, conscientiously ask, would be, that the defendants should refund a part of the purchase-money, in proportion to the surplus, with interest, which must be reduced by the scale of depreciation.
Todd, J., after stating the case, delivered the opinion of the court, as follows :—In the written arguments submitted by the parties, it is admitted by the counsel for the appellants, that the evidence exhibited, does not support the allegation in the bill, that the assignment was made during the minority of Mary Frazer. This admission renders it unnecessary for the court to go into a minute examination of the evidence ; it will be sufficient to observe, that the testimony is clear and satisfactory on this point; and therefore, there is no pretence for setting aside the contract and decreeing a reconveyance of the land. But it is contended, that the complainants are entitled *to relief in some shape, for the surplus land contained pggg within the survey ; either by a decree for the reconveyance of the L surplus land ; by a pecuniary compensation for it, according to its present
233
380	SUPREME COURT	[Feb’y
Vowles v. Craig.
value ; or by a pecuniary compensation, according to the price at which the land was sold, on which interest should be allowed.
This argument assumes for its basis, that there existed a mistake as to the thing sold. If there was a mistake, how did it originate, and who is injured thereby ? ■ Was there a mistake ? It may be inquired, to what quantity of land was Mary Frazer entitled, by virtue of the governor’s warrant, issued in pursuance of the royal proclamation ? To two thousand acres. How much did she sell and receive payment for ? Two thousand acres. It would appear from this, that she had sold and received payment for as much land as she was entitled to. How comes it, that this surplus was included in the survey ? From the fraud, design, ignorance or negligence of the surveyor. Who is defrauded or injured thereby ? The commonwealth of Virginia, and not Mary Frazer. For what, is it asked, that compensation shall be made ? For land which, by the fraud, design, ignorance or negligence of the surveyor, Mary Frazer might by possibility have been entitled to. Was the sale of this survey of a specific quantity, at a certain price per acre ? or was it a sale of a specific tract ? The bill alleges it was of the first description ; the answers deny it, and say it was of .the latter. There is no proof to support the allegation in the bill, unless from the survey, a power of attorney, and the receipt for the purchase-money, it should be inferred, that as they relate to 2000 acres of land, only that quantity was intended to be included in the sale. But this proof is conceived to furnish a very opposite conclusion, the description and designation of the tract of land sold, not as part of a tract, but an entire tract. The answers, being supported by the assignment, that it was a sale of the whole survey, and being also responsive to an allegation as well as to an interrogatory in the bill, must be taken as true and conclusive. When an assignment is made of a plat and certificate of survey, the purchaser takes it subject to the risk of its containing a less quantity than is expressed on its face, and should it contain more he is entitled to it.
In the case of \oung v. Craig, *decided by the court of appeals J of Kentucky (a copy of which has been furnished and relied on by each party), the court say, “ there was, particularly in the sales made at an early period of this country, great liberty of admeasurement, frequently allowed by the seller and expected by the purchaser. Where this was the case, to authorize a conclusion, from the surplus contained in the boundaries of a tract, that there was a mistake of quantity, the surplus ought to be greater than was usual in conveyances made about the same period.” Now, it appears from a statement in the bill, as well as from the general history of the country, that it was usual and customary to make considerable allowance in military surveys ; and it is not shown, that the surplus in this is greater than in other surveys made about the same time. Again, in the same case, the court proceed, “ it would be obviously improper and unjust, to lay down any general rule as to the rate of surplus that would justify an inference of mistake, which would deserve correction ; each case must depend upon its own particular circumstances ; whether such an inference would be authorized in the present case, were the sale in question per acre and not in gross, need not be determined, since we are of opinion, it is of the latter description.” If this reasoning be correct, as to conveyances, it will apply with redoubled force to assignments of plats and certi-
234
1814]	OF THE UNITED STATES.	381
The Sally.
ficates of survey, where the purchaser takes it subject to the risk of its containing less than it specifies.	.
Mary Frazer or the complainants can be considered in no other view, I than mere volunteers maid fide, and of course, not entitled to the aid of a court of equity. It seems, as a necessary consequence, if the claimants are not entitled to the surplus land, they are not to compensation in either of the other modes contended for. Where there is no right, there can be no claim to compensation sustained.
Decree affirmed, with costs.
*The Sally, Pobtee, Master. •	[*382
Prize.
Property engaged in an illicit intercourse with the enemy, to be condemned to the captors, not to the United States.
A municipal forfeiture, under the laws of the United States, is absorbed in the more general operation of the law of war.
The prize act of 26th June 1812, operates as a grant from the United States to the captors, of all property rightfully captured by commissioned privateers, as prize of war.
This was an appeal from the decree of the Circuit Court for the district of Massachusetts. The facts of the case were as follows :
The brig Sally, John Porter, master, was captured by the privateer Jefferson, John Kehew, commander, July 7th, 1812, as prize, and sent into the port of Salem, in the district of Massachusetts, for adjudication. The Sally, at the time of her capture, had on board a coaster’s manifest, and a permission from the collector of the port of Passamaquoddy, dated July 7th, 1812, to proceed to Boston. From the manifest, her cargo purported to be one box of hones, and one box of furs. She had on board, also, about four thousand bushels of salt.
The Sally was licensed and enrolled for the coasting trade, at New London, June 6th, 1812, upon the oath of John Patterson, of the city of New York, who swore that he was the agent of James Mavor, of New York, the owner. Patterson was on board at the time of capture. Upon the return of the monition in the district court, Patterson claimed the brig for Mavor, and Edward Monroe claimed the salt for himself and Lemuel P. Grosvenor, of Boston. The affidavit of claim of Monroe did not state where the salt was taken on board, nor for what reason it was not mentioned in the manifest. Patterson, Porter, the master, and the crew, upon the preparatory examinations, swore that the salt was put on board the brig at Robinstown and Eastport, in the district of Maine. Among the papers found on board the Sally, was a permission to land her cargo of 60 tons of cordage and 50 bolts of duck, from the deputy-collector of the port of Passamaquoddy, dated June 20th, 1812.
*There was also found on board, a letter to Messrs. Monroe & r*ooq Grosvenor, Boston, dated Eastport, July 7th, 1812, signed “ L. P. G.,” *■ covering a bill of lading of the salt. ■ In this letter, it is said, “ I am sorry to O	O	7	7	J
say that no clearance of the salt can be obtained on board the brig ; I have however dispatched her, with a clearance of two small packages of John Brewer, consigned to us, and leave you to manage ; it will, at least, be as well as the other goods sent; and I am- hourly expecting a seizure to pay for
235
384
SUPREME COURT
[Feb’y
The Sally.
sundry prizes taken from St. Andrews.” Again, *£ A protection can be had, for any vessel bound here with provisions, from the English admiral, &c.” St. Andrews is a small town in New Brunswick, a province belonging to Great Britain. In the manifest of the Sally, the two small packages above mentioned are consigned to Monroe & Grosvenor, Boston.
The captors produced witnesses in the district court, who proved that the Sally discharged, at St. Andrews, her cargo of cordage, after the 1st July 1812, and took in there the salt.
The vessel and cargo were condemned, in the district court, to the captors, and an appeal entered by the claimants. In the circuit court, the decree was affirmed, and Monroe & Grosvenor appealed to this court. A claim was interposed by the United States, as for a forfeiture under the nonintercourse act. On the above statement (and upon the argument in the case of The Rapid, ante, p. 155), the case was submitted.
Tuesday, March 5th, 1814. (Absent, Marshall, Ch; J.) Story, J., delivered the opinion of the court.
This case cannot be distinguished from that of The Rapid. It was there decided, that property engaged in an illicit intercourse with the enemy, is *3841 liable confiscation *as prize of war, and the only remaining ques-J tion now before us, is, to whom it shall be condemned—to the cap-tors, or to the United States ?
By the general law of prize, property engaged in an illegal intercourse with the enemy, is deemed enemy property. It is of no consequence, whether it belong to an ally or to a citizen ; the illegal traffic stamps it with the hostile character, and attaches to it all the penal consequences of enemy ownership. In conformity with this rule, it has been solemnly adjudged, by the same course of decisions which has established the illegality of the intercourse, that the property engaged therein must be condemned as prize to the captors, and not to the crown. This principle has been fully recognised by Sir William Scott, in The Nelly, 1 Rob. 219; and indeed, seems never to have admitted a serious doubt.
But a claim is interposed by the United States, claiming a priority of right to the property in question, upon the ground of an antecedent forfeiture to the United States, by a violation of the non-intercourse act (of March 1st, 1809, § 5, 2 U. S. Stat. 529), the goods having been put on board at a British port, with an intent to impbrt the same into the United States. We are all of opinion, that this claim ought not to prevail. The municipal forfeiture under the non-intercourse act, was absorbed in the more general operation of the law of war. The property of an enemy seems hardly to be within the purview of mere municipal regulations ; but is confiscable under the jus gentium.
But even if the doctrine were otherwise, which we do not admit, we are all satisfied, that the prize act of 26th June 1812, ch. 107, operates as a grant from the United States of all property rightfully captured by commissioned privateers, as prize of war. The language of the 4th, 6th and 14th sections is decisive. The decree of the circuit court, condemning the vessel and cargo to the captors, is affirmed.
Decree affirmed.
236
1814]
OF THE UNITED STATES.
*385
*The Euphrates.
Prize court.—Further proof
Further proof, inconsistent with that already in the case, refused on the part of the claimant.
This was an appeal from the sentence of the United States Circuit Court for the district of Rhode Island.
The merchandise, in this case, was libelled in the district court of Rhode Island, as belonging to subjects of Great Britain. The capture was stated in the libel to have been made on or about the 23d day of August 1812. No libel was filed against the vessel. In June term 1813, a claim was interposed on behalf of the United States, on the ground, that these goods were imported in violation of the non-intercourse laws. In May 1813, Matthias Bruen interposed a claim to certain merchandise on board of the Euphrates, alleging that he is the sole legal owner thereof/ The papers connected with this shipment were as follows :
1.	An invoice, dated Mansfield, 30th June 1812, purporting the goods therein described to be shipped at Liverpool, under insurance, consigned to Mr. Henry Watkinson, New York, or, in case of his absence, to Mr. John French Ellis, of that place, for sale, on account of the manufacturers, Siddons & Johnston, who were British subjects.
2.	A bill of lading, by which it appeared, that the goods were shipped at Liverpool, on the 7th of July 1812, on board of the Euphrates, to be delivered to Henry Watkinson, he paying freight, &c.
3.	A letter from Siddons & Johnston, dated Mansfield, 30th June 1812, in which they say, “ We have, this day, consigned to you for sale on our account, sixteen trunks,” &c. (which are the goods claimed). We hope we shall shortly hear of sales being made by you, to advantage : we hope they will at least net us what they are invoiced at, covering all expenses. * We shall leave this shipment to your discretion, to make the best and most advantageous returns you can.”	L
There being no proof whatever, on the part of the claimant, and he not appearing to have any interest whatever, by any of the papers on board, the goods were condemned both in the district and circuit courts, and the claimants adjudged to pay costs to the libellants. From this decree, there was an appeal, on the part of Mr. Bruen, to this court.
Harper, for the captors, stated, that this was merely a question of further proof offered on the part of the claimants. The captors, he said, relied upon the documentary evidence produced in the cause. This evidence, he stated to the court, and contended, that it was too plain and consistent to justify the court in allowing the claimant further proof.
Stockton, contra, stated, that the object of the further proof now offered, was to show that Watkinson was agent for a manufacturing house in England; that the claimant ordered certain goods through this agent; that on the passage of the non-intercourse act, he directed the goods not to be shipped, &c.
Daggett, on the same side, observed, that it had been generally supposed, that the rules of the English courts respecting further proof, would not apply to the courts of the United States, but that parties would have the benefit of 237
886	SUPREME COURT	[Feb’y
The Euphrates.
new evidence in this court, in prize casés, as well a s in other cases in admiralty ; and that the parties in the present case had acted on that opinion.
The case was then submitted.
*Tuesday, March 15th, 1814. (Absent, Marshall, Ch. J.) Livingston, J., delivered the opinion of the court. The court does not understand the counsel for the appellant as contending that there was any error in the sentence of the circuit court, or that any other than sentence of condemnation could have been pronounced there. It was, indeed, a very clear case, on the proceedings before that court. But it is supposed, that Mr. Bruen is entitled to an order for further proof ; and that the facts which he will be able to make out, if an opportunity be afforded him, will entitle him to a restitution of the property.
Without’ rejecting the application, on account of its being made at so late a period, the court has looked into the proof which it is proposed to bring forward, and on comparing it with the proof already in the cause, we are of opinion, that it is totally incompetent to make out a title in the appellant. There is not the least reason to believe, that these goods were shipped, in consequence of any previous orders given to Mr. Watkinson, by merchants in this country, and transmitted by him to Messrs. Siddons & Johnston. On the contrary, whatever orders may have been sent to those gentlemen, by Mr. Watkinson, it is most manifest, that they did not, in this case, act upon them ; for the invoice and letter accompanying the shipment announce, in terms not to be misunderstood, that these goods were sent to the United States for the exclusive account and at the sole risk of the British manufacturers.
It has not escaped the notice of the court, that not one of the gentlemen who are alleged to have given orders for these goods on Messrs. Siddons & Johnston, through Mr. Watkinson, and who all reside in the United States, appears as a claimant for any part of them. Instead of this, we find them, or several of them, assigning their interest in this adventure, whatever it may be, to the claimant ; but for what value does not appear ; and every instrument takes care to express that the property is to be recovered at the risk and expense of Mr. Bruen. Thus, is a total stranger to the shipment, * and a mere volunteer, who may not have paid *a single cent for his
J title, made a party claimant : a mode of proceeding/ novel at least, and well calculated to awaken suspicions not at all favorable to his pretensions. Whether a title to goods obtained in this way, would, under any circumstances, be sustained by a court of prize, we will not say ; but it is, in our opinion, sufficient reason, of itself, to refuse the party any opportunity to make further proof. Mr. Bruen not only does not pretend, that he owned any. part of these goods, at or previous to the time of capture, but merely that he was the legal owner at the time of filing his claim ; and upon the affidavits now laid before the court, as the ground of an order for further proof, it appears, that this legal title was acquired in the way already mentioned ; that is, by a number of persons assigning to him a chose in action, which they must have considered of no value, or, at any rate, not worth pursuing. Such conduct can entitle the party to no favor or indulgence whatever. Upon the whole, the court is as well satisfied with the decree of the circuit court, as it is with the total insufficiency of the evidence in reserve
238
1814]	OF THE UNITED STATES.	388
The Mary.
to produce any alteration in it. The application, therefore, for further proof is rejected, and the sentence of the circuit court affirmed, with costs.
Decree affirmed.
The Mary, Stafford, Master.
War.— Withdrawing funds.—Further proof.
This was an appeal from the sentence of the United States Circuit Court for the district of Rhode Island. (Reported below, 8 Gallis. 620.)
The following is a statement of the facts connected with the case : General Garret Visscher, alias Fisher, a native of the state of New York, entered into the British army, before the revolution, and having obtained the rank of lieutenant-general, died in England, rich, intestate and without issue, leaving a large number of relatives, citizens of the state of New York, residing at or near Albany. Mr. *Nanning J. Visscher, one of the num- r*qftq her, went to England, and met with no obstruction in obtaining let-ters of administration, and possessing himself of the estate to the amount of 150,000Z. sterling. In August 1812, he set himself in motion to return to the United States, and did return, leaving Mr. Harman Visger, his agent, in England, to transmit the property to the United States, for the use of those concerned. Harman Visger, finding that he could not remit to this country, in the course of exchange, without great loss, invested a large sum in goods, of the growth and manufacture of Great Britain, and to transmit a part of them to the United States, hired, on freight, the brig Mary, an American registered vessel belonging to J. B. Kennedy, of South Carolina. The brig being at the port of London, was sent to Bristol, in July 1812, to take on board this cargo. She arrived off that place, according to her logbook, on the 23d of the same month. On the 30th, an embargo was laid in England, on account of the war; and on the 1st of August, the customhouse mark of stop was put on the Mary. Having been detained, some time, by the embargo, she sailed from Bristol, with the cargo on board, on or about the 15th day of August 1812, bound to New York. Soon after she put to sea, she sprang a leak, and on the 21st day of August 1812, put into Waterford, in Ireland, to repair. Requiring a complete repair, her cargo was relanded and stored in the King’s store-houses, and she was repaired by the freighter, at an expense of 1700Z. sterling ; to secure which he took from the captain a bottomry-bond. On the 7th of April 1813, the Mary sailed from Waterford ; having cleared out for Newport, in Rhode Island, in order to avoid the blockade .which was supposed to exist as to New York. Before sailing, a British license of the description usually denominated a Sidmouth license, was obtained for her from the king’s privy council, by Mullet, Evans & Co., subjects of the king of Great Britain. The license ran in theii' name, and purported to be a renewal of a similar license granted on the 8th of July 1812. She had no license from the American government. On the 23d of April 1813, she was captured on the-high seas, by the American privateer Paul Jones, and sent into Newport, with a single prize-master on board, the master being left in command of the vessel and in possession of the ship’s papers. On her arrival at r*nqft Newport, she was libelled *by the captors, as being and bearing
239
'390
SUPREME COURT
[Feb’y
The Mary.
enemy property, and also by the United States for a breach of the non-intercourse acts. The claimants made application to the secretary of the treasury, and he, under the act of January 2d, 1813, “directing the secretary of the treasury to remit fines, forfeitures and penalties, in certain cases,” remitted the forfeitures and penalties accruing to the United States.
The brig’s papers were regular, proving her to be an American registered vessel. The invoices and bill of lading stated her cargo to be shipped by Harman Visger, on account of the heirs of General Fisher, citizens of the United States, and consigned to Peter Remsen & Co., New York, to account with Nanning J. Visscher, administrator, or with Barent Bleecker, Esq., of Albany, agent for the heirs. The invoices were all dated 13th August 1812. The bill of lading had no date ; but by its reference to the invoices, the shippers had given it the semblance of the same date.
War was declared by the United States against Great Britain on the 18th of June 1812, and the fact was known in London on the 26th of July following ; the news was stated on that day, in the public gazette in London, to have been received in Liverpool on the 18th of the same month. The claimant was in England, when the Mary sailed, and for some time after, and made no attempt to countermand the voyage. lusurance was obtained in England, freight paid, as well as license and brokerage money, and the exportation duties, before the Mary sailed.
The brig and cargo were acquitted in the district court, but condemned in the circuit court ; and from the decree of the latter, the claimants appealed.
Stockton, for the claimants.—It is contended, on the part of the appel-♦ogi-i lants : *1. That the cargo in question having been purchased by citi-
J zens of the United States, either before the war was actually declared, or before that event was known in England, and with the sole intent of transferring American funds in England to the United States, the shipment was no act of illegal trading with the enemy, and no cause of forfeiture. 2. That the act of congress of 2d January 1813, authorizes this importation, and by legal construction, amounts to a license for this vessel and cargo. 3. That the circumstance of the vessel’s sailing with a Sidmouth license, is no cause of forfeiture. 4. That the capture by the privateer was altogether unwarranted by its commission, and expressly against the instructions of the President of the United States ; and therefore, that the property ought to be restored, with daniages and costs.
As to the first point, the withdrawing of funds, we contend, that a person found in a foreign country, at the time of the breaking out of a war between that country and his own, has a right to do everything necessary to enable him to return to his own country with his effects. This doctrine is supported by weighty authorities, and is founded on principles of reason and justice. It is, besides, an act of sound policy in a nation, to permit its own citizens to withdraw their funds from the hostile country ; it is taking from the enemy’s means of carrying on the war and adding to its own. According to the old rule on this subject, the withdrawing of funds from the enemy’s country was a matter of right; but the modern rule of the court of admiralty has determined it to be a matter of favor merely. If it be a matter of favor, we conceive it is such a favor as both reason and policy
240
1814]	OF THE UNITED STATES.	391
The Mary.
would direct, in a case like this, to be granted. See The Madonna delle Gracie, 4 Rob. 161, 195 ; Chitty’s Law of Nations 19, 20 ; The Dree Ge-broeders, 4 Rob. 191, 232 ; Dell v. Gilson, 1 Bos. & Pul. 345 ; The Detty Cathcart, 1 Rob. 184,220.
2.	As to the act of the 2d January 1813 (2 U. S. Stat. 789). This act amounts to a license from the *American government. The remission r*qq» of the forfeitures incurred by a violation of the non-intercourse laws, *• is to be considered as legalizing voyages made under circumstances like those of the present case. The act ought to be liberally construed. It cannot be supposed, that the United States meant to remit the penalties accruing to them for the violation of the non-intercourse laws, in order to benefit the privateersmen : the remission was intended exclusively for the benefit of the owners ; against whose claim the legislature supposed the non-intercourse law to be the only bar.
Again, the act of 2d January must have been known in Ireland long before the Mary sailed from Waterford for the United States. She may, therefore, be considered as having sailed from that port under the faith of this act, as she had commenced her voyage from Bristol between the periods specified therein. The act of 13th July 1813, relinquishing the claims of the United States, &c., does not favor the claim of the captors, inasmuch as it relinquishes only the property of British subjects, not captured in violation of the instructions of the 28th August 1812 ; whereas, the property in the present case belonged to Americans.
The Mary sailed from Bristol, or, at all events, from London, which is to be considered as the terminus d quo of the voyage, in consequence of the repeal of the British orders in council; and is, therefore, to be considered as embraced in the president’s instruction to privateers of 28th August 1812.
3.	The Sidmouth license is no cause of condemnation, inasmuch as the original license was obtained, before the war was known in England, and the second was merely a renewal of the first; the British government conceiving themselves bound, in honor and good faith, to renew it. There is no analogy between the present case and that of The Julia, decided yesterday (ante, p. 181). In that case, the license was granted, flagrante bello, in order to neutralize belligerent property. But here, the granting of the license was only an act of justice, which the British government conceived themselves bound to perform.
*The act of congress of July 6th, 1812, § 6 (2 U. S. Stat. 780), <-*303 allows passports to be given for the safe transportation of any ship or L other property belonging to British subjects, and then in the United States. This is just what the British government have done in the case of the Mary j the granting of the license was merely a reciprocity of good offices on their part.
But admitting this to be a case of sailing under the flag and pass of the enemy, still, the vessel only, and not the cargo, would be liable to condemnation. As to this distinction between the ship and goods sailing under the enemy’s flag, see Chitty’s Law of Nations, p. 58. The Vrow Elizabeth, 5 Rob. 2.
4.	This capture was illegal ; being altogether unwarranted by the commission of the privateer, and directly in the face of the president’s instruction of 28th August 1812. This instruction prohibits the capture of “ vessels
8 Crancii—16	241
393	SUPREME COURT	[Feb’y
The Mary.
belonging to citizens of the United States, coining from British ports to the United States, laden with British merchandise, in consequence of the alleged repeal of the British orders in council.” These were the precise circumstances of the vessel in question. The capture was, therefore, illegal. That the president had a right to issue the instruction under consideration, cannot admit of doubt. By virtue of his office, he is commander-in-chief of the army and navy of the United States ; and, as such, has, in time of war, the whole public armed force of the nation under his control. The privateers of the United States constitute a part of that public armed force. The president was, therefore, authorized to issue this instruction. 2 Azuni 355.
From the preceding considerations, we trust the court will feel itself justified in reversing the sentence of the circuit court.
J~. "Woodward, control.—If the character of the Mary was, primd facie, belligerent, she must be condemned ; no latent equities *can save her.
J That such was her character, appears clearly from the examination in proeparatorio ; and a vessel must be acquitted or Condemned, generally, .according as her character appears upon that examination. The license was for a British or American cargo. The presumption is, that it was British. It was certainly British fabric. 'No American orders had been given for the goods. The whole appeared as British property, and at the risk of British subjects. If a vessel sails under such circumstances, she sails at her peril. The Marianna, 6 Rob. 24; The Tobago, 5 Ibid. 194 ; 6 Ibid. 134.
But admitting, for argument’s sake, that the property is, as the claimants contend, American property, still, the transaction now under consideration was a withdrawing of funds from the enemy’s territory, after a full knowledge of the war, without the license of the American government; and therefore, subjected the property so withdrawn, to capture and condemnation as prize of war. The property in question was certainly British, long after the knowledge of the war in England ; and the purchase of it by an American citizen, in the territory of the enemy, was an illicit trade, which is, of itself, cause of condemnation. That the property was British, for a considerable time after the’war was known in England, appears from the dates of the invoices. They are all dated 13th August 1812 ; from which circumstance (there being no bills of parcels), it is to be inferred, that the purchase of the goods was made on that day ; whereas, the war was known in England, at all events, on the 26th of July preceding, and is stated to have been known in Liverpool on the 18th. We contend, however, that this property was British, not only until the 13th of August, the time of the purchase, but that it is, at this day, strictly British property, under coloi* of an American name.
It does not appear from the record, that the Mary sailed from London to Bristol, with a view to the prosecution of. the voyage to the United States. But if she did, there was an opportunity for countermanding the *voyage> after it was known that war had been declared ; and such
J countermand ought to have been given. If it might have been, and was not, the doctrine of putting in motion does not apply to the present case. The claimants were clearly in delicto, and no presumption can be made in their favor.
242
1814]	OF THE UNITED STATES.	395
The Mary.
This voyage was in violation of the non-intercourse laws of the United States ; and on that ground also, the property is liable to condemnation.
With regard to trading with the enemy, we contend, that not only the purchase of hostile goods, in the enemy country, but also the payment, in that country, of freight, license and brokerage money, and of the exportation duties, amount to a trading with the enemy ; and that every trading with the enemy is illegal. The 1To op, 1 Rob. 165, 196 ; The Juffrow Margaretha, cited in the same case, p. 181, note (Am. ed.) ; The Dree Gebroe-ders, 4 Ibid. 191, 232. Several cases have been thought to favor an opposite doctrine ; but the case now under consideration does not, we conceive, come within the principle of any one of them. The first is the case of The Packet de Bilboa, 2 Rob. Ill, 133. But there, the vessel sailed before the war. The Mary, on the contrary, sailed with full knowledge of the war. The next case is that of The Abby, 5 Rob. 251. The same distinction exists here, as in the last-mentioned case. The case of Dell v. Gilson, 1 Bos. & Pul. 345, has been overruled in the case of Potts v. Bell, 8 T. R. 548.
As to the license, it does not appear that any was granted on the 8th of July. The recital of such an one in the subsequent license, is no evidence. The license in question, therefore, although it purports to be a renewal of a former one, is a license de novo, obtained with a full knowledge of the war ; and is, therefore, cause of condemnation.
* Pinkney, in reply.—This is neither a case of trade with the enemy, nor of domicil. Visscher had not acquired a British character by *-either of these means.
It is not a case of trading, within the opinion of this court in the case of The Rapid {ante, p. 155).. Visscher, the present claimant, was not domiciled in England. He returned to the United States, almost immediately upon hearing of the war. He arrived long before thé cargo. The transaction commenced, and the goods in question were purchased, before the war was or could have been known in England. No criminality can possibly be attached to the transaction ; and therefore, it cannot be a ground of forfeiture. This is the language of the English decisions on this subject.
It is admitted, that if this enterprise had not been undertaken before knowledge of the war, and if some material part of it had not been actually carried into effect ; if it had been entirely a new undertaking, and not with the view of withdrawing funds, it would have been a case within the rule of the law of nations, which prohibits trade with an enemy. But where the goods have been purchased, before the war, as here, the case neither comes within that rule, nor within the decisions of the English court of admiralty. Sir W. Scott admits that such goods may be withdrawn. The Juffrow Gatharina, 5 Rob. 141.
But if the court should be of opinion, that this case comes within the general rule prohibiting trade with the enemy, still it will be recollected, that that rule admits of relaxation, under peculiar circumstances ; and We conceive that the circumstances of the present case, if of any, will justify such relaxation. The putting into Waterford cannot, with any reason, be urged against us ; that was an act of necessity, and was no discontinuance of the voyage ; no new trading with the enemy took place there.
As to the Sydmouth license. It has already been shown, that the 243
396
SUPREME COURT
[Feb’y
The Mary.
original license was obtained on the 8th of July, a considerable time before *Qa*7i inf°rmatiou of the *war reached England. However criminal, there-J fore, the obtaining such a license might have been, in time of known war, in a time of supposed peace, it was perfectly justifiable and innocent: it was also absolutely necessary in the present case ; the Adventure could not have proceeded without a license. The British government, was, in fact, bound to give it, by the universal custom of nations. Every nation is under a similar obligation. Our own government has authorized the president to grant such licenses.
But it has been said, that though the obtaining of the first license may be justified in this manner, yet the second, having been procured after knowledge of the war, will not admit of the same justification. Little need be added to what has already been said on this point. The second license was merely a renewal of the first: they are both, indeed, to be considered but one license. The first having been granted, the second was required, under the circumstances of this case, by the law of nations ; or, if not, it was, at any rate, required by good faith. So the British government thought, and so they acted. This case is widely different from those of The Aurora and The JuliA.
With regard to the president’s instruction of 28th August, we contend, that the Mary comes within both the letter and spirit of that instruction. Her national character is clearly shown by her register and other documents : she is proved to be owned by J. B. Kennedy, of South Carolina : and it is clear, that she sailed on the faith of the repeal of the orders in council. The power of the president to issue instructions to the privateers of the United States, has already been considered. Congress has given him a twofold power over this part of the armed force of the nation. He is authorized to grant and to revoke their commissions. But omne majus continet in se minus: he may, therefore, grant with limitation, and he may revoke in part. In issuing the instructions in question, he has done nothing more than he had full power and authority to do.
Tuesday, March 15th, 1814. (Absent, Marshall, Ch. J.) The Covet ♦aoftl ma^e following order :—*It is ordered, that the claimant have -1 leave to make further proof, by affidavits, as to the following points :
1.	As to his own citizenship.
2.	As to the names of the heirs of General Fisher who are interested in the property, the places of their residence, and their national character.
3.	As to the time when Mr. Nanning J. Visscher went to England ; the objects which he had in view in going thither ; how long he resided there ; when the cargo claimed by him was purchased ; and when he returned to the United States. And—
4.	As to the instructions which the Paul Jones had on board, at the time of the capture of the Mary; and particularly, whether the instructions of the president of the 28th August 1812, had been delivered to the captain, or had come to the knowledge of the captain, at the time of the capture ; or whether the Paul Jones had been in port, after the 28th of August 1812, and before the capture.
It is further ordered, that the captors be also at liberty to make further proof as to these several matters.
244
1814]
OF THE UNITED STATES.
398
United States v. 1960 Bags of Coffee, (a)
Forfeiture.—Bond fide purchaser.
The forfeiture of goods, for violation of the non-intercourse act of March 1st, 1809, takes place upon the commission of the offence, and avoids a subsequent sale to an innocent purchaser, although there may have been a regular permit for landing the goods, and although the duties may have been paid.* 1
This was an appeal from the sentence of the Circuit Court for the district of Maryland, which restored a quantity of coffee that had been seized and libelled for violating the non-intercourse act of March 1st, 1809, § 4, 5. (2 U. S. Stat. 529.)
The claimants in the court below alleged, by way of plea, that the coffee was regularly entered and the duties *secured according to law, after rcggn which, they beeame the purchasers for valuable consideration. They *-also denied that it was imported contrary to law. The United States demurred to that part of the plea which states the purchase, &c., and took issue upon that part of the plea which denies the illegal importation. By the sentence of the district court the demurrer was overruled, and the coffee restored ; which sentence was affirmed in the circuit court, and the United States appealed to this court.
The case was elaborately argued, by the Attorney-General, Pinkney, for the United States, and by Boyd and Harper, for the claimants, at last term, and again at this.
The words of the statute, which create the forfeiture, are : “ That whenever any articles, the importation of which is prohibited by this act, shall, after the 20th of May next, be imported, into the United States,” all such articles “ shall be forfeited.”
Pinkney^ late Attorney-General, for the United States.—Two objections have been made to the claim of the United States, for this forfeiture. 1. That the right of the United States does not vest, until seizure and condemnation : and 2. That the United States are bound by the act 'of their officer, in receiving the duties and permitting the goods to be entered.
1.	The forfeiture occurs at the moment of committing the offence. The statute says, whenever the act is done, the thing shall be forfeited ; no other time is mentioned. The seizure is the consequence of the forfeiture, not its cause; the thing is first forfeited, and then seized. The forfeiture immediately follows the offence ; the seizure is merely to ascertain the fact. This is the plain construction, or rather the letter of the statute.
There is a distinction between forfeitures at common *law, and r*. those accuring under a statute. United States v. Grundy, 3 Or. 351. L In that case, the Chief Justice said, “ Where a forfeiture is given by a statute, the rules of the common law may be dispensed with, and the thing forfeited may either vest immediately, or on the performance of some particular act, as shall be the will of the legislature ; this must depend upon the construction of the statute.” The reason why the court decided, in that
(a) February 15th, 1814. Absent, Washington, Justice.
1 s. p. The Mars, post, p. 417 ; The Fiorenzo, 1 Bl. & H. 61 ; Fontaine v. Phœnix Ins. Co, 11 Johns. 293 ; Kennedy v. Strong, 14 Id. 128.
245
400	SUPREME COURT	[Feb’y
United States v. Bags of Coffee.
case, that the right to the ship did not vest in the United States immediately upon taking the false oath, was, that the United States had an alternative, either to take the vessel, or its value, and until the United States had made their election, the right did not vest.
But there are two cases at common law, where the forfeiture relates back to the time of the offence and avoids intermediate alienations—deo-dand and suicide. So also, in the case of felony and flight. So also, In all cases where the punishment for the offence is the forfeiture of the thing by which the offence was committed, or where the punishment cannot be inflicted on the person. In treason and felony, the forfeiture of personal chattels is not the punishment, but a corollary or consequence of the disability imposed on the person. But in regard to lands, the forfeiture relates to the time of the offence committed. With regard to purchasers, the rule is caveat emptor. This is said to be a hard case, but there are other cases equally hard, depending on the same rule. If goods are deposited with a merchant to keep, and he sell them, unless in market overt (and we have no market overt in this country), the sale is void, and the owner may recover them from the. purchaser who bought them, without notice. This too is a hard case, but it is every day’s practice.
To show that the forfeiture attaches at the moment of the offence committed, he cited Wilkins v. Despard, 5 T. R. 112 ; Roberts v. Withered, 12 Mod. 92, and 1 Salk. 223 ; Lockyer v. Offley, 1 T. R. 252.
2.	As to the second point, he said, it was impossible to contend, that the United States were bound by their oflicer’s ignorance of the fact of the forfeiture, when he received the duties and granted the permit.
1	*Boyd, contra.—The demurrer admits that the coffee was properly
-* entered, that the duties were paid, and that there was a bond fide sale and transfer of the coffee, for a valuable consideration, before seizure. A forfeiture cannot overreach a bond fide sale to third person. That this is the rule at the common law, is clearly proved by the very learned and elaborate argument of Judge Winchester in giving his opinion in the case of The Anthony Mangin (3 Cranch 356), and the principle has been recognised by this court in the same case (United States v. Grundy, 3 Cr. 350). A forfeiture by statute is not more operative than a forfeiture at common law. There is no expression in the statute to justify the distinction. The common law says, whenever a man shall commit treason or felony, he shall forfeit his goods and chattels to the king.
Bond fide purchasers are favored at common law. Ex, parte Edwards, 10 Ves. 104 ; 1 East 94, 95 ; 2 Esp. 731 ; 12 Mod. 92 ; 2 Cranch 390 ; 3 Ibid. 356 ; 6 Ibid. 133 ; 5 Bac. Abr. 229. The forfeiture must be followed by seizure and condemnation, before the property can vest in the United States. This principle has been decided by this court, in the St. Domingo cases, where the law being temporary, and having expired, after condemnation in the court below, and before hearing in this court, the property was restored, which could not have been the case, if the property was vested in United States by the commission of the offence. If the title of the United States was complete at the time of the offence, and if the seizure was merely to ascertain the fact, the expiration of the law could not divest that title out of the United States, and this court must have affirmed the sentence of con
246
1814]	OF TRE UNITED STATES.	401
United States v. Bags of Coffee.
demnation. "Yeaton v. United States, 5 Cr. 281. If the United States had not discovered the offence for three years, the act of limitations would have barred their claim. Adams v. Wood, 2 Cr. 336. If the coffee had been destroyed, the United States could not have recovered the duties, because the goods were not legally imported.
2. The United States are estopped from claiming the property, by the acts of their officer, in granting the permit *and receiving the duties. The acts of officers are to be favored. 16 Vin. 114, tit. Officers ; 17 Ibid. 153. The permit to land the coffee, and the receipt for the duties, are conclusive evidence to all the world, except the illegal importer, that the coffee was lawfully imported. If a claimant encourage the vendee to buy, his claim shall be postponed to that of the purchaser. Sugden on Vendors 480. Acceptance of rent is an admission of title. 18 Vin. 149. So here, acceptance of the duties is an admission of a lawful importation. A purchaser is only bound to use reasonable diligence ; he has only to ask whether there be a regular permit to land the goods, and whether the duties have been paid. If the officers were mistaken, and have given evidence of a good title, their mistake ought not to injure an innocent purchaser. 2 Bro. C. C. 389 ; 5 T. R. 118; 1 Ibid. 260 ; 3 Cr. 389, 390. The inconveniences of such a rule would be intolerable ; the utmost prudence could not prevent a man from loss. In personal chattels, possession is the criterion of title. 13 Ves. 121.
Harper, on the same side.—This is a case of bond fide purchase, for a valuable consideration, without notice. It is presumed to be without notice, because the contrary does not appear. The only case supposed to be against us is that of Roberts v. Withered, 5 Mod. 191 ; 12 Ibid. 92 ; 1 Salk. 223. That was a case of detinue against the wrongdoer ; there was no intervention of a purchaser without notice. The relation of the forfeiture to the time of the offence is never suffered to overreach an innocent purchaser, without notice. Relation is a fiction of law, which is never allowed to do injustice. Where a party not only conceals his claim, but gives out that the title is clear, he shall be postponed. The permit was evidence on which the claimant had a right to rely. No one can take advantage of his own act, to injure another.
As to the common-law doctrine of forfeiture, the*cases of treason r*.«« and felony furnish the general rule ; the cases of deodand, suicide *■ and flight are exceptions. In treason and felony, the forfeiture is admitted not to relate to the fact committed. In the case of deodand, the exception to the rule is founded on the notoriety of the fact. In the case of suicide, the reason for the exception is, that there is no other mode of punishing the offence, and flight is $n admission of the fact, and a withdrawing himself from punishment. Notoriety, confession, and the inability to inflict other punishment, are the grounds of these exceptions to the general rule. In treason and felony, if the goods are sold bond fide, without notice, the forfeiture relates back only to the conviction. Unimpeached possession is evidence of unimpeached title. This principle applies to forfeitures under a statute, as well as to those at common law. The rule caveat emptor, is never applied to secret liens.
Pinkney, in reply.—The letter of the act of congress is plain and express. The forfeiture is the necessary and immediate consequence of the offence.
247
403	SUPREME COURT	[Feb’y
, United States v. Bags of Coffee.
No other time is mentioned. He did not mean to say, that the title of the United States is consummated, until condemnation. But the forfeiture attaches by the commission of the offence, and overreaches all intermediate acts. This doctrine is necessary for the public good, otherwise the rights of the United States would be defeated by fictitious sales, the fraud of which it would be difficult, perhaps impossible, to detect. The forfeiture of the thing by which the offence is committed, is the punishment itself, not a mere consequence of a disability. It passes to the purchaser cum onere. Where legal rights have attached, the rule caveat emptor always applies, but never to equitable liens, without notice.
As to real estate, the relation in treason and felony was to the offence committed ; why did not the argument db inconvenienti control the rule in that case? Plowd. 260, 290. In the case of deodand ; a horse kicks a man : before the man dies, the horse is sold ; the man dies, the horse is for-sited as deodand. * Where is the notoriety ? The true reason is, that J it is a forfeiture of the offending thing. In felony, nothing but sale in market overt can prevent the relation of the forfeiture to the time of the offence. If felo de se give himself a mortal wound, and before his death convey his estate, and die, the conveyance is void. So, in the case of flight, after felony. Thé law looks principally to the thing for punishment. The general rule of the law of England is, that a purchaser of personal goods is not safe, unless he purchased in market overt.
If the United States could be estopped by the acts of their officers, the plea is as good in behalf of the illegal importer, as of the innocent purchaser. The purchaser was as much bound to know of the offence as the collector. But the collector had no authority to waive the penalty, and therefore, cannot be presumed to have waived it. If he had even given a release of the forfeiture, it would have been void.
The argument db inconvenienti, is rather an argument ad misericordiam. If there be hardship in the case, application should be made to the secretary of the treasury, who has power to relieve.
In the St. Domingo cases, the law had expired, without any provision being made to enforce the penalty in existing cases. After the expiration of the law, the court had no authority to condemn ; and the appeal annulled the sentence of the court below.
March 15th, 1814. (Marshall, Ch. J., being absent.) Johnson, J., delivered the opinion of the court, as follows :—This case has been argued very elaborately, and has been a long time under consideration. But from the decision which the court has at length come to, its merits are brought within a very limited compass.
We are of opinion, that the question rests altogether on the wording of *1 the act of congress : by which it is *expressly declared, that the
' J forfeiture shall take place, upon the commission of the offence. If the phraseology were such as, in the opinion of the majority of the court, to admit of doubt, it would then be proper to resort to analogy, and the doctrine of forfeiture at common law, to assist the mind in coming to a conclusion. But from the view in which the subject appears to a majority of the court, all assistance derivable from that quarter becomes unnecessary.
It is true, that cases of hardship and even absurdity may be supposed 248
1814]	OF THE UNITED STATES.	405
United States v. Bags of Coffee.
to grow out of this decision, but on the other hand, if, by a sale, it is put in the power of an offender to purge a forfeiture, a state of things not less absured will certainly result from it. When hardships shall arise, provision is made by law for affording relief, under authority much more competent to decide on such cases, than this court ever can be. In the eternal struggle that exists between the avarice, enterprise and combinations of individuals, on the one hand, and the power charged with the administration of the laws, on the other, severe laws are rendered necessary to enable the executive to carry into effect the measures of policy adopted by the legislature. To them belongs the right to decide on what event a divesture of right shall take place, whether on the commission of the offence, the seizure, or the condemnation. In this instance, we are of opinion, that the commission of the offence marks the point of time on which the statutory transfer of right takes place.
The decree of the circuit court of Maryland on the demurrer, is, therefore, reversed, and the cause remanded, that the issue in fact may be tried.
Story, J. (dissenting.)—The decree which has just been pronounced by a majority of the court is decisive of the case of The Jfars, which is now pending in this court, and my decision therein must be reversed. The opinion which I there held, and the reasons which support it, are disclosed on the record, and though the discussion in this court has not increased my confidence in that opinion ; nevertheless, as I am not yet satisfied of its incorrectness, and two *of my brethern concur in it, I shall make no apology for introducing it in this place. It is as follows :	*•
“ The present information proceeds for a forfeiture of the brig Mars, upon the allegation that the brig departed from the United States bound to a permitted port, without giving bond pursuant to the act of the 1st of March 1809, ch. 91, § 16. There are other counts in the information which I need not now consider, because it is admitted, there was a forfeiture under the first count, and the answer of the present claimant sets up, as a justification of his title, that he is a bond fide purchaser, for a valuable consideration, and without notice of the offence ; and it is admitted, that this justification is true in point of fact; and that there have been no laches either as to the United States, or as to the purchaser.
“ The question presented to the court is, whether property, which has become forfeited to the United States, and afterwards, and before seizure, while remaining in the possession of the vendor, is sold to a bond fide purchaser, for a valuable consideration, without notice, is protected against the claim of the United States ?
“ This question is peculiarly delicate and interesting, in whatever way it is considered. On the one hand, it strikes at the root of almost all the forfeitures in rem which the legislature has provided to guard the revenue laws from abuse ; and if the decision be against the United States, it may open a wide field for fraud and colorable transfers, to the encouragement of offenders. On the other hand, if the secret taint of forfeiture be indissolubly attached to the property, so that at any time, and under any circum-’ stances, within the limitations of law, the United States may enforce their rights against innocent purchasers, it is easy to foresee, that great embarrassments will arise to the commercial interests of the country.; and no
249
406	SUPREME COURT	[Feb’y
United States v. Bags of Coffee.
man, whatever may be his caution or diligence, can guard himself from injury and, perhaps, ruin. Considerations of this nature have pressed heavily upon my mind, and I have, therefore, been solicitous to avoid a discussion involving so much public as well as private importance. I could have *4071 w^e<i to have reserved *this question for the consideration of all J the judges in the highest tribunal, that in forming my opinion I might have had the light reflected from their minds, and the benefit of their acknowledged learning. The parties have, however, seen fit to pursue another course, and I shall meet the question as my duty requires, without asking for shelter under any authority ; though not without extreme diffidence.
“ Before I proceed to the principle question, it will be necessary to clear the way, by adverting to some considerations which have grown out of the argument on each side. It should be remembered, that this is not a case where the vendor was out of possession, and, of course, where the law might infer a want of due diligence in the purchaser. To such a case, the maxim caveat emptor would certainly apply. Nor is the present a case where the sale was made at the first moment when the property came within the jurisdiction or grasp of the United States ; for I should have little doubt that such a hurried sale could hardly be the foundation of a solid title. It is not a case of voluntary gift or collusive transfer, which would probably share the fate of all bounties in fraud or exclusion of public rights. Jones v. Ashurst, Skin. 357.
“ It is admitted, that the sale is bond fide, for a valuable consideration, and without any express or implied notice. Further, the statute, on which the information is founded, has declared, that the property shall be wholly forfeited, if the offence be committed ; but it has not declared, at what time it shall take effect, to what time it shall relate, nor whether it shall be incapable of being purged by subsequent events. The forfeitures under the statute are to be distributed in the same manner as forfeitures under the collection act of 2d March 1799, § 91, by which informers and officers of the customs, as well as the government, may acquire vested interests ; and it follows, therefore, that these interests, as to informers and officers of the customs, cannot vest, until their rights are ascertained by seizure or condemnation.
“ It has been argued on the part of the United States, that the forfeiture is, by the statute, made absolute, on the commission of the offence, and as it was competent for the legislature to enact such a law, the title cannot be *4081 divested *by any subsequent event. That the cases of forfeiture at
J the common law are not applicable, because they depend upon the qualification annexed to them by the common law, which makes them conditional only, and not absolute forfeitures, whereas, the present statute has annexed no qualification : and in support of this distinction, the opinion of the Chief Justice in the case of the United States v. Grundy, 3 Cr. 337, has been quoted, where he says (p. 350), ‘ It has been proved that in all forfeitures accruing at common law, nothing vests in the government, until some legal step shall be taken for the assertion of its right; after which, for many purposes, the doctrine of relation carries back the title to the commission of the offence, but the distinction, taken by the counsel for the United States, between forfeitures at common law and those accruing under a statute, is 250
1814]	OF THE UNITED STATES.	408
United States v. Bags of Coffee.
certainly a sound one. Where a forfeiture is given by a statute, the rules , of the common law may be dispensed with, and the thing forfeited may I either vest immediately, or on the performance of some particular act, as ! shall be the will of the legislature. This must depend upon the construction of the statute.’
“ I entirely subscribe to the doctrine here stated by the Chief Justice. There can be no doubt, that the legislature may provide that its forfeitures shall take effect differently from the course prescribed by the common law ; but the question will always be : Have the legislature so done ? If they have not, shall the rules of the common law govern, in the absence of any positive declaration? It should be remembered also, that the Chief Justice is here speaking in a case where the main questi; n before him rested in a considerable degree upon the point whether the legislature had not given an election of remedy, and suspended the vesting of any interest until the determination of that election. But I apprehend, that the words of the Chief Justice by no means imply that when a forfeiture in rem is attached to a statute offence, the rules of the common law are, of course, excluded. They do not, in my judgment, import more than the opinion which I have already expressed. Now, in the case at bar, I cannot perceive in the language of the legislature any systematic exclusion of the common law as to forfeitures. They have declared no more than that the *commission of an act r*4nq shall induce a forfeiture : and so has the common law ; but the ques- *-tion as to the nature and extent of the operation of this forfeiture is nowhere, that I can perceive, touched. This view of the subject leads me to deny another position assumed by the counsel for the United. States, viz., that the doctrine of relation has nothing to do with the present controversy. In the progress of this examination, I think, if not already shown, it will sufficiently appear, that the doctrine of relation has a very powerful influence in every essential view of the subject.
“ I will now consider the main question, which, perhaps, may be divided into two branches. 1. What is the interest or right which attaches to the government in forfeitures of property, before any act done to vindicate its claims? 2. What is the operation of such act done to vindicate its claims—as to the offenders, and as to strangers ?
“ 1. As to the first point. In all cases at common law, where lands are forfeited for the personal offence of the party, I take the rule to be univers-, ally true, that until the offence is ascertained, by conviction and attainder, no title vests in the sovereign. Before that time, the party is entitled to the possession and profits of his lands, and the government have no vested right in them, either to enter or dispose of the estate. 2 Inst. 48 ; Staundf. P. C. 192. Nay, even after attainder, until office found, the sovereign is considered as having but a possession in law, and an office is necessary to complete a title. Staundf. P. C. 198. The offender, therefore, has, until conviction, full power and authority to alien his lands, and to convey to the purchaser a complete and legal, though defeasible seisin ; and unless such conviction follow the offence, the alienation is good against all the world. For, as Bracton says (lib. 2, ch. 13, p. 30), ‘ea vero, quae post feloniam facta sunt, semper valent et tenent nisi fuerit condemnatio subsecuta, et si fuerit subsecuta, non valent. If this be true, and there seems no reason to doubt r*. 1 it, *it follows, that the estate of the offender is rightful, that he has
251
410	SUPREME COURT	[Feb’y
United States v. Bags of Coffee.
bothjws ad rem, and jus in re': and consequently, that the Crown hath hut a mere possibility which in no wise restrains the exercise of ownership over the property. See 4 Bl. Com. 382.
“ The same doctrine is also, in general, true, as to like forfeitures of goods and chattels. Bract, lib. 2, ch. 13 ; Co. Litt. 391 a ; Staundf. P. C. 193 ; Ibid. 52 ; 2 Inst. 48 ; 2 Hawk. P. C. ch. 49. Nor do the cases of deodand and suicide form any exceptions, for the authorities all concur, that the forfeiture does not vest a property, until the fact is found of record. Loxley's Case, 5 Co. 109 ; Hales v. Petit, Plowd. 260, 262. It has been supposed, that goods waived vested ipso facto in the crown, upon waiver ; but on a careful examination of the authorities, it will be found, that the owner retains his full property, until an absolute seizure by the crown. Staundf. Prerog. lib. 3, ch. 25, p. 186 ; Fitz. Abr. Estray 2 ; 21 Edw. IV. 16. For all purposes of alienation and sale, therefore, the property in goods and chattels remains in the owner, notwithstanding the commission of an offence subjecting it to forfeiture ; and consequently, he may convey a good title against every person but the crown, and against the crown also, unless in cases where the anterior relation applies. Jones v. Ashurst, Skin. 357. I think, therefore, it may be assumed as a settled principle, that in forfeitures for personal offences, before seizure or prosecution, the sovereign has no vested title.
“ Can the case be distinguished, where the forfeiture is made to attach to the instrument itself, by means whereof the offence is committed ? It seems to me, that the most favorable cases for the United States, viz., deo-dands and waifs, conclusively show that no such distinction anciently prevailed, for whatever may be the effect of relation, it is certain, that no property vested in the crown, until seizure or inquisition. I infer, therefore, that no absolute property vested in the United States, in the case at bar, until actual seizure was made, and the decision in the king’s bench in Lockyear v. Offley, 1 T. R. 252, seems to me fully to support the inference. It has, indeed, been supposed by the counsel for the United States, that *	_ Foberts v. Withered, 1 Salk. 223, *12 Mod. 92 ; and Wilkins v. Des-
J pard, 5 T. R. 112, support a contrary doctrine. But on examination, they appear to me to confirm it. In the first, the action, was detinue, for property forfeited under the navigation act of Charles II., and the court held, that the action well lay, because the bringing action amounted to a seizure. In the latter case, there had been an actual seizure made for the forfeiture, and the sole question was, if condemnation were not necessary to divest the property of the owner.
“ If I am right in the view which I have already taken of the subject, there can be little doubt, that the title of the United States, so far as affects third persons, rests mainly on the doctrine of relation ; and that the counsel for the United States must call in the aid of the common law to enforce the present claim. For if no title vests until seizure, there must, at the time of seizure, be a title in the offending party, capable of being divested and of vesting in the United States. But at the time of the present seizure, that title had been transferred to the present claimant, and nothing was left in the vendor capable of transfer.
“ 2. This leads me to the examination of the second point, viz : What is the operation of the acts done by the sovereign to vindicate his title by for-252
1814]	OF THE UNITED STATES.	411
United States v. Bags of Coffee.
feiture? At common law, in case of attainder for treason or felony, the forfeiture of lands relates back to the time of the offence committed, so as to avoid all intermediate changes and conveyances (4 Bl. Com. 481, 487 ; Co. Litt. 390 6y Staundf. P. C. 192); but ig general, in like cases, the forfeiture of goods and chattels relates back only to the time of conviction, so that all previous changes and alienations, and even bond fide gifts, are protected. 4 Bl. Com. 387 ; Co. Litt. 391 ; Staundf. P. C. 192 ; Perk. § 29 ; Skin. 357. There are some cases in which the relation is carried back to the time of the inquisition made ; but unless that of suicide form an exception, there is no case where the relation is pressed beyond the time of the prosecution. According to the decision in Plowden 260, &felo de se forfeits all his goods and chattels, from the time of committing the act which occasions the death : ard. the doctrine seems to be supported by Rex n. Ward, 1 Lev. 8. The general ground assigned for it, is, that *otherwise the offender would rij.
go unpunished, and it is compared to the case of flight after felony. L Now, admitting that this is a solid reason, and a sufficient foundation for a legal adjudication, it may well be doubted, if the doctrine, or the decision in Plowden, required the forfeiture to relate back further than the death of the party.
“The case was that Sir James Hales, the offender was joint-tenant with his wife of a term of years ; and the question made was, whether, after inquisition, the forfeiture should not relate back, so as to overreach the right of survivorship which accrued to the wife. Now, one of the judges (Weston) held, that the forfeiture should only have relation to the death, at which time the title of the wife accrued ; yet in this concourse of titles, the king’s title by prerogative should be preferred (Plowd. 264); and I find that Lord Hale (1 Hale P. C. 414) expresses great doubt, whether, for all purposes, the relation could be carried back to the stroke which occasioned the death. Be this case as it may, it is the only exception to the general doctrine ; and inter apices juris, a case so unjust as that which robbed an unfortunate woman, not only of the moiety which vested in her by survivorship from her husband, but of the other moiety absolutely vested in her by grant, I am glad to find is a judicial anomaly.
“ I have said, that the case of a felo de se forms the only exception to the general rule. There are authorities to show, that in case of flight for felony, the forfeiture, after it is found by inquisition, verdict or indictment, relates back to the time of the flight, so as to avoid all mesne acts. Rex v. Wend-man, Cro. Jac. 82. But I think the better opinion, notwithstanding, is, that it relates only to the time of finding the flight. Co. Litt. 390. Staundf. P. C. 192 ; 5 Co. 109 ¿»y Bro. Forfeiture des terres, 119 ; Ibid. Relation 31. But it has been argued, that admitting the rule, that the forfeiture of goods and chattels, in general, relates back to the time of conviction, yet it is inapplicable to a case, where a specific thing is declared forfeited by law, for in such case the corpus delicti attaches to the thing in whose hands soever it may come ; and the case of deodand, put by counsel, in Plowden 262, is cited in illustration. ‘ If my horse strike a man, *and afterwards I ■.* sell my horse, and after that the man dies, the horse shall be for- ■-feited.’ I do not find any authority to support this position, although it is cited as law in 1 Hawk. P. C. ch. 26, § 7, and in Terms de la Ley, Deodand. It seems a peculiar case, growing out of the avarice of the church, and the
253
413	SUPREME COURT	[Feb’y
United States v. Bags of Coffee.
supersti tition of the laity, in ancient times. The distinction seems also countenanced by the court in Lockyer v. Offley, 1 T. R. 252. The counsel for the plaintiff there argued, that the ship was forfeited, the moment the smuggling was committed, even though she had afterwards come into the hands of a bond fide purchaser ; and Mr. Justice Willes, in delivering the opinion of the court, in alluding to the argument, that the forfeiture attached the moment the act was done, said, ‘ it may be so as to some purposes, as to prevent intermediate alienations and incumbrances.’ To be sure, this expression carries with it a pretty strong implication ; but in the same case, returning to the argument, the same learned judge says, ‘I do not know, that it has been ever so decided—it may depend upon circumstances, such as length of possession, laches in seizing, or other matters.’ And the decision of the court went ultimately upon other grounds. I must, therefore, consider the authority as not fairly extending to this point, and indeed, as rather leaning the other way. On the other hand, the case of lord and villein has been cited from Co. Litt. 118, § 117, to show that even where a right to seize property exists in the lord, it is not perfected by seizure, so as to overreach prior alienations; for until seizure, it is said, that he has neither jus in re, nor jus ad rem, but a mere possibility. And the conclusion drawn from this example is not materially affected by the consideration that a contrary doctrine prevails in the case of the sovereign (Ibid. § 118), because the reason assigned is perfectly consistent with it ; viz., that the property is in the sovereign, before any seizure or office. I do not think much reliance can be placed upon analogies borrowed from the feudal tenures, because they were governed by peculiar and technical niceties, the reason^ of which have long since ceased, and perhaps cannot now be well understood. But if the principle of the case put be, that where the absolute property is not vested, before the alienation, a subsequent seizure will not avoid such alienation, if made bond fide, it is directly applicable to the case at bar.
*414.1	*“ I have already endeavored to show that the absolute property
J did not vest in the United States until seizure ; and I think it would be a bold assertion, that the United States could, before such seizure, have conveyed the property to a purchaser, or have clothed it with a national character. I consider a passage in Lord Hale’s treatise on the customs as corroborating the view which I have already taken of this case ; he says, 1 Though a title of forfeiture be given by the lading or unlading, the custom not being paid, yet the king’s title is not complete, till he hath judgment of record, to ascertain his title, for otherwise there would be endless suits and vexations ; for it may be ten or twenty years hence, that there might be a pretence of forfeiture now incurred.’ Harg. Law Tracts 226. According to Lord Hale, even seizure would not be sufficient to fix the title in the king ; but it must be consummated by a judgment of record.
“ But the point of difficulty is, to decide whether the United States had noit such an inchoate title as, connected with a subsequent seizure, would, by a retroactive effect, defeat the intermediate purchase. Now, it is precisely in this view, that the case of villein may admit an unfavorable distinction ; for until seizure, the lord has not even an inchoate title, but a mere possibility. And though the property is, in the like case of the sovereign, said to be in him, without seizure or office, ydt, I apprehend, the title 254
1814]	OF THE UNITED STATES.	414
United States v. Bags of Coffee.
is not consummate, until seizure or office ; for until that time, it could hardly be held, that a purchaser under the villein, or even the villein himself, had a tortious possession and use of the property. The case of villenage, then, even supposing it to apply, does not go quatuor pedibus with the present.
“The case of Attorney-General v. Freeman, Hardr. 101, has also been relied on by the claimant. In that case, the party, after outlawry and before inquisition, made a bond fide lease of his lands ; and it was held, that the forfeiture did not overreach the title of the purchaser. But I do not think that much reliance can be placed on this case, because it turned on a settled distinction, that until inquisition, the king has no title in the real chattels or freeholds of the outlaw ; but in personal chattels, the title is in the king, without inquisition. *1 Ld. Raym. 305 ; 1 Salk. 395 ; 12 r*.. _ Mod. 176. And the relation does not extend beyond the time of the L commencement of the title. The case of The Anthony Mangin, 3 Cr. 356 n., before Mr. Justice Winchester, is the only other authority that I recollect, which has been thought materially to bear upon the question. I entertain the most entire respect for the opinions of that truly able and learned judge : and although the decision of that case did not rest upon the present question, it is but justice to acknowledge, that it has thrown great light on the subject, and enabled us all to meet the stress of this cause with more certainty than could otherwise have been done. It was very clearly the opinion of the learned judge, that a seizure did not relate back to the time of forfeiture, so as to overreach an intermediate bond fide conveyance ; and he has certainly offered cogent reasons in support of that opinion. But after a diligent examination of the authorities cited by him, I am well satisfied, that the point has never been solemnly adjudged, and must now be decided upon principle.
“ It seems to be a rule, founded' on common sense, as well as strict justice, that fictions of law shall not be permitted to work any wrong, but shall be used ut res magis valeat quam pereat, 3 Co. 28 b; and this rule, so equitable in itself, seems recognised in the common law. 13 Co. 24 ; 2 Vent. 200. And in respect to the doctrine of relation, this rule has been admitted in its fullest extent in civil cases. Bro. Relation, 18 ; 1 Hen. VII. 17 ; Bro. Debt, 139 ; 6 Co. 76 b; 3 Ibid. 28 b. For it has been repeatedly adjudged, that relations shall never work an injury, ‘ and shall never be strained to the prejudice of a third person, who is not a privy or a party to the act and further, that ‘ in destruction of a lawful estate vested, the law will never make any fiction.’ 3 Co. 29 ; 2 Vent. 200.
, “ It is true, as we have already seen, that a different rule prevails as to forfeitures of lands, in treason and felony, founded probably on feudal principles, or the barbaric character of the times; yet even as to cases of treason and felony, a striking distinction is admitted in favor of goods and chattels ; and mesne acts, before conviction or inquisition, are suffered to retain their actual validity.
*“ Looking to the vast extent of commercial transfers, the favor with which navigation and trade are fostered in modern times, and L the extreme difficulty of ascertaining latent defects of title, it seems difficult to resist the impression, that the present is a case which requires the application of the milder rule of the law. If the principle contended for by the government be admitted in its full extent, it will be found very difficult to
255
416	SUPREME COURT	[Feb’y
The Mars.
bound it. A bale of goods which is once contaminated with a forfeiture, will retain its noxious quality through every successive transfer, even until it has assumed under the hands of the artizan its ultimate application to domestic use’: yet such a position would strike us all as monstrous. If we say, that the forfeiture shall cease with the change of the identity of the whole package, as such, still an intrinsic difficulty remains. The object of the government would be completely evaded by the offender, and the innocent purchaser would sink under the pressure of frauds which he could never know, nor by diligence avert.
“ On the whole, I have come to the result, not however without much diffidence of my own opinion, that a forfeiture attached to a thing, conveys no property to the government in the thing, until seizure made or suit brought. That previous to that time, the owner has the exclusive right of possession and property, though the government may be considered as having an inchoate title, or possibility. That against the offender or his representatives, upon seizure or suit, the title, by operation of law, relates back to the time of the offence, so as to avoid all mesne acts ; but as to a bond fide purchaser, for valuable consideration, and without notice of the offence, the doctrine of relation does not apply so as to divest his legitimate title.
“ Considering, as I do, that this question is of very great importance, I trust, that it will receive the decision of the highest tribunal ; and I shall not feel humbled, if upon better examination a different doctrine shall prevail by the judgment of that court. I do, therefore, adjudge and decree, that the decree of the district court in the premises be affirmed.”
Decree reversed.
*417]	*The Mars, (a)
United States v. The Brigantine Mars.
Forfeiture. —Bond fide purchaser.
A forfeiture under the 3d section of 28th June 1809, ch. 9, will overreach a bona fide sale to a purchaser, for a valuable consideration, without notice of the offence.
The Mars, 1 Gallis. 191, reversed.
This was-an appeal from the sentence of the Circuit Court of Massachusetts district, which affirmed the sentence of the district court, restoring the brig to the claimants.
An information was filed against the brig Mars, for a breach of the act of 28th of June 1809 (entitled “ an act to amend and continue in force certain parts of the act, entitled an act to interdict the commercial intercourse,” &c.), in departing from port without having given bond according to the 3d section of the act, which provides, that “ if any ship or vessel shall, contrary to the provisions of this section,'depart from any port of the United-States, without clearance, or without having given bond in the manner above mentioned, such ship or vessel, together with her cargo, shall be wholly forfeited.”
The vessel, after her return to the United States, and before seizure, was
(a) March 15th, 1814.
256
1814]
OF THE UNITED STATES.
417
The Frances.
bond fide purchased by the claimants, for a full and valuable consideration, without notice of the offence. Upon this ground, she was, by the decree of the district court, ordered to be restored ; which decree was affirmed by the circuit court. Judge Story’s opinion in prononncing that decree, will be found in the preceding case of the United States v. 1960 diags of Coffee. This case having been submitted upon the arguments which were had in that case—
Johnson, J., delivered the opinion of the court, as follows :—This case depends upon the principle established in the case against the coffee, the Bohlens, claimants, (a) *The decision, as in that case, was founded upon the ground of a sale to a bond fide purchaser, without notice. * L The decree of the circuit court of Massachusetts district, in this case, is, therefore, reversed, and the brigantine Mars adjudged forfeited to the United States.
Decree reversed.
The Frances, Boyer, Master: Ibvin’s claim.
Capture as prize.—Discharge of lien.
No lien upon enemy’s property, by way of pledge for the payment of purchase-money, or otherwise, is sufficient to defeat the rights of the captors, in a prize court, unless in very peculiar cases, where the lien is imposed by a general law of the mercantile world, independent of any contract between the parties.1
Where goods are sent upon the account and risk of the shipper, the delivery to the master is a delivery to him, as agent of the shipper, not of the consignee ; and it is competent to the consignor, at any time before actual delivery to the consignee, to countermand it, and thus to prevent the consignee’s lien from attaching.
This was an appeal from the sentence of the Circuit Court of Rhode Island, condemning certain British goods, captured on board the Frances. These good were claimed by Thomas Irvin, a domiciled merchant of the United States, on the ground of lien.
Irving, for appellant: Pinkney, for captors.
Tuesday, March 15th, 1814. (Absent, Marshall, Ch. J.) Washington, J., delivered the opinion of the court, as follows :—Thomas Irving is a merchant of New York, and claims certain packages of merchandise consigned to him by Robertson & Hastie, and also three boxes of merchandise consigned to him by Pott & McMillan. The consignors were British subjects,, residing in Great Britain, at the time that these goods were shipped, which,, according to the terms of the bills of lading, were on account and risk of the shippers.
It is not pretended, that the real ownership in these goods was not vested in the consignors, enemies of the United States ; but the claimant founds his pretensions on a lien created on the goods consigned by Robertson & Hastie, in consequence of an advance made to the shippers, in consideration of the consignment, by his *agent in Glasgow ; and on the goods shipped by Pott & McMillan, in virtue of a general balance of
(a) The case of the United States v. 1960 Bags of Coffee, ante, p. 398.
1 The Battle, 6 Wall. 498; The Hampton, 5 Id. 372.
8 Cranch—17	257
419	SUPREME COURT	[Feb’y
The Frances.
account due to him as their factor. To establish these claims^ in point of fact, an order for further proof is asked for, and the question is, whether, if proved, the claim can, in point of law, be sustained ?
The doctrine of liens seems to depend chiefly upon the rules of jurisprudence established in different countries. There is no doubt, but that, agreeable to the principles of the common law of England, a factor has a lien upon goods of his principal, in his possession, for the balance of account due to him ; and so has a consignee, for advances made by him to the consignor. The consignor or owner cannot maintain an action against his factor, to recover the property so placed in his possession, without first paying or tendering what is thus due to the factor. But this doctrine is unknown in prize courts, unless in very peculiar cases, where the lien is imposed by a general law of the mercantile world, independent of any contract between the parties. Such is the case of freight upon enemies’ goods, seized in the vessel of a friend, which is always decreed to the owner -of the vessel. Abbott on Shipping 184. It is, to use the words of Sir W. iScott, “ an interest directly and visibly residing in the substance of the .thing itself.” The possession of the property is actually in the owner of the ship, of which, by the general mercantile law of all nations, he cannot be deprived, until the freight due for the carriage of it is paid. He has, in fact, a kind of property in the goods, by force of this general law, which a prize court ought to respect and does respect. On the other hand, the captor, by stepping into the shoes of the enemy owner of the goods, is personally benefited by the labor of a friend, and ought, in justice, to make him the proper compensation : and on the other, the ship-owner, by not having carried the goods to the place of their destination, and this, in consequence of the act of the captor, would be totally without remedy to recover bis freight against the owner of the goods.
But in cases of liens created by the mere private contract of individuals, depending upon the different laws of different countries, the difficulties which an examination of such claims would impose upon the captors, and *4901 *even uPon the prize courts, in deciding upon them, and the door J which such a doctrine would open to collusion between the enemy owners of the property and neutral claimants, have excluded such cases from the consideration of those courts. In the case of The Tobago, 5 Rob. 196, where an attempt was made by a Britith subject, to set up a bottomry .interest in an enemy’s ship, Sir W. Scott observed, that no precedents to sanction such a claim could be produced : and he very properly concluded, that this was strong evidence that it had not been the practice of the court to consider such bonds as properly entitled to its protection. And it seemed to be conceded, that, upon the same principle, the captor could not entitle himself to the advantage of such liens, existing in an enemy, upon neutral property. From this it appears, that the doctrine of the prize courts upon this subject, works against as well as in favor of captors. The case of The Marianna, 6 Rob. 24, avoids all the objections made to the application of the case of The Tobago to the present. It is precisely in point.
The principal strength of the argument in favor of the claimant in this case, seemed to be rested upon the position, that the consignor in this case could not have countermanded the consignment, after delivery of the goods to the master of the vessel; and hence it was inferred, that the captor had 258
1814]
OF THE UNITED STATES.
The Thomas Gibbons.
420
no right to intercept the passage of the property to the consignee. This doctrine would be well founded, if the goods had been sent to the claimant, upon his account and risk, except in the case of insolvency. But when goods are sent upon the account and risk of the shipper, the delivery to the master is a delivery to him as agent of the shipper, not of the consignee ; and it is competent to the consignor, at any time before actual delivery to the consignee, to countermand it, and thus to prevent his lien from attaching. Upon the whole, the court is of opinion, that, upon the reason of the case, as well as upon authority, this claim cannot be supported, and that the sentence of the court below must be affirmed with costs.
Livingston, J. (dissenting.)—I differ in opinion from the majority of the court. Irvin had a lien on the goods, apparent on the face of the papers. I have no difficulty in condemning the property, subject to that lien ; but I cannot assent to an unqualified condemnation.
Decree affirmed.
*The Thomas Gibbons, Rockwell, master. [*421 Privateers.—Condemnation as prize of war.
Under the 8th section of the prize act of June 26th, 1812, the president had full authority to issue the instruction of 28th August 1812.
The commissions of the privateers of the United States may be qualified and restrained by the instructions of the president.
A shipment made, even after a knowledge of the war, is to be considered as having been made in consequence of the repeal of the orders in council, if made within so early a period thereafter, as would leave a reasonable presumption, that the knowledge of that repeal would induce a suspension of hostilities on the part of the United States.
By the mere act of illicit intercourse, the property of a citizen is not divested ipso facto ; it is only liable to be condemned as enemy property, or as adhering to the enemy, if rightfully captured during the voyage.
The president’s instruction of 28th August 1812, was meant to protect all British merchandise on board an American ship, without any exception on account of British proprietary interest.
This was an appeal from the decree of the Circuit Court for the district of Georgia.
The ship Thomas Gibbons sailed from Liverpool for Savannah, on the 16th of August 1812, was captured on the 12th of October following, on the high seas, off Tybee light-house, and the same day, brought into the port of Savannah, as prize to the privateer Atas.
The ship and cargo were under the protection of a special license, dated 21st July 1812, and conceived in the usual terms of the document usually denominated the Sidmouth license, except that, in this instance, the protection was extended to the return-voyage back to Liverpool, there to discharge the cargo and receive freight, if it should be found not to be allowable for the vessel and cargo to enter the ports of the United States. The clearance from Liverpool, 13th August 1812, mentioned the ship as being released, in consequence of her license, from an embargo laid on American vessels. The cargo, shipped at Liverpool by sundry British merchants, was consigned to sundry commercial houses at Savannah, and was claimed by the respective consignees ; by some, in their own behalf, and by others, in behalf of their correspondents in the interior.
From the evidence introduced into the cause, it appeared, that part of
259
421
SUPREME COURT
The Thomas Gibbons.
[Feb’y
the goods, although expressed to be on account and risk of the consignees, was shipped without previous orders or authority ; that some of them were shipped under general orders (transmitted in time of peace) to ship goods ; others, under particular orders given during the operation of’the orders in council and the non-intercourse act ; such as, to ship “ when the trade opened,” “at a proper season,” “ as soon as it was legal to ship to the United States,” &c. ; and lastly, that some of them were shipped with an understanding that they were to become the property of the citizen consignee, upon arriving at the port of destination.
*4991 *The commission of the Atas was granted on the 24th of Septem-
J her 1812, and was accompanied by a copy of the president’s instructions to privateers, of the 28th of August 1812, by which the public and private armed vessels of the United States are directed not to interrupt “ any vessels belonging to citizens of the United States, coming from British ports to the United States, laden with British merchandise, in consequence of the alleged repeal of the British orders in council.”
Jones, for the captors, contended, that the ship and cargo were enemy property.
I. Constructively so, by the maritime law of nations, according to which law the hostile character is impressed : 1. By being placed, by the enemy’s pass or license, infra, præsidium hostis ; and by the employment and course of traffic : The Vigilantia, 1 Rob. 10, 11. 2. By direct trading with the enemy, flagrante bello.
IL Actually so, with regard to a great proportion of the cargo, according to the principles of municipial law, as recognised and acted upon by prize courts, in administering the maritime law of nations ; according to which : 1. Goods shipped without previous orders or authority, although expressed to be on account and risk of the consignee, continue the property and at the risk of the enemy shipper, until accepted by the citizen consignee. 2. General orders (transmitted in time of peace) to ship goods, are, ipso facto, superseded, if war intervene and render the act unlawful as well as dangerous. 3. Particular orders (given during the operation of the orders in council and the non-intercourse act) to ship “ when the trade opened,” or “ at proper seasons,” or “ as soon as it was legal to ship to the United *4231 *St;a^e8>” cou^d not authorize a shipment, merely upon the conditional
J revocation of the orders in council, whilst the American non-intercourse act continued in force, à fortiori, if war should supervene. 4. The proprietary interest in goods shipped with an understanding that they are to become the property of the citizen consignee, upon arriving at the port of destination, continues in the enemy shipper, until arrival and delivery, without regard to the terms in which the consignment is ostensibly made. The Packet de Pilboa, 2 Rob. 111. That, therefore, goods captured in itinere, under either of the foregoing predicaments, were to be treated as the property and at the risk of the shipper, and as partaking of his national character.
The principal question, he said, which would now be agitated was, whether the instruction of the president of the United States to American privateers, of 28th August 1812, extended to the case now under consideration. He contended, that it did not : or if it did, that it could not legally 260
1814]
OF THE UNITED STATES.
The Thomas Gibbons.
423
avoid the capture, nor in any manner affect the rights of the captors, quoad the prize in question, but could only be enforced (as originally intended) by the exercise of executive discretion and authority over the commission of the privateer. That, according to the decision in the case of The Sally {ante, p. 382), that the prize act operates as a grant from the United States to the captors, the president could not deprive them of their rights under that act. That the power of the president to instruct must be limited by the rights so granted to the captors. That the authority with which he was invested by congress, was only given him to regulate the conduct of our privateersmen, and to prevent abuses ; not to limit their rights already vested. ‘That he had no general authority to limit the rights of war, aS was clear from the passage of particular acts of congress investing him with the respective powers of removing British subjects, of giving licenses to depart, &c., which would have been wholly unnecessary, had he possessed a general power over these matters. That the position contended for, was further supported by the terms employed in the third section of the prize act, in which the owners, &c., of privateers are required to give bond *to . the United States, that they will observe “ the instructions which *-shall be given them according to law, for the regulation of their conduct: ” also by the letter of the secretary of state (Mr. Monroe) to Mr. Russell, of August 31st, 1812, written under the eye of the president, in which the secretary says, that it was not in the power of the president to control the privateers, except by an indiscriminate revocation of their commissions. But—
2d. That, admitting the power of the president to issue the instruction under consideration, the present case was not embraced thereby. That the property in question, having been shipped after a full knowledge of the war, could not be considered as shipped in consequence of the alleged repeal of the orders in council. That the only time in which the shipments contemplated by the instruction, could be made, was that which intervened between the repeal of the orders in council and the knowledge of the declaration of war ; after which, it was unreasonable to calculate on the safety of property shipped for the United States., That the ship also was not within the description of vessels intended by the instruction to be exempted from capture, because she was engaged in an illicit intercourse with the enemy, under an enemy passport, issued after the knowledge of the war in England, and was, therefore, quasi enemy property. That, at all events, the property intended to be protected, by the instruction, from capture, was American property, and not British, and therefore, that, as to the latter, the capture was certainly rightful.
Harper, contra.—It has been said, on the part of the captors, that the president had no authority to issue the instruction of 28th August, either on general principles, or under the prize act. We contend, that his authority to issue it, may be established on either of these grounds.
1.	On general principles. The president, as commander-in-chief of the army and navy of the United States, has, in time of war, the whole public armed force of the nation under his control. The privateers of the United States constitute a part of the public armed *force : this appears from their commissions, without which they would be pirates. On gen- L
261
425	SUPREME COURT	[Feb’y
The Thomas Gibbons.
eral principles, therefore, the president was authorized to issue the instruction in question.
2.	By the 8th section of the prize act, the president is authorized to establish and order suitable instructions for the better governing and directing the conduct of the privateers of the United States. Now, this “ governing and directing ” their conduct, we conceive, may be applied as well to the designation of the objects of hostility as to the mode of attack, &c. It is applicable, in our opinion, to their whole conduct.
But it is contended, that the present case is not embraced in the instruction. It is said, that the ship did not sail in consequence of the repeal of the orders in council. What, then,*we would ask, was the motive for sailing, at the particular time this vessel sailed? What could have induced the master to sail, after knowledge of the war, but a confidence that the repeal of the orders in council would have put a period to hostilities ? It is well known, that such a confidence did exist among the merchants in England, generally, and that it continued, until it was ascertained in that country, that the repeal of the orders had not produced the expected effect. The act of congress of 2d January 1813, remitting certain fines, forfeitures, &c., has fixed upon the 15th of September as the period when it was known in England that this effect had not been produced. This vessel sailed on thé 16th of August preceding. We insist, therefore, that notwithstanding the existence of hostilities was known in England, at the time the Thomas Gibbons sailed, yet she sailed in consequence of the repeal of the orders in council.
The expression in Mr. Monroe’s letter of 31st August, was probably accidental—certainly incidental, and not a particular object of the letter. The expression, British merchandise, in the instruction of 28th August, was not intended to designate the right of- property, but the kind of goods. It was the policy of government to protect British as well as American *ProPerty shipped under the particular circumstances mentioned in -* the instruction.
Pinkney, on the same side.—The president cannot coerce the privateers of the United States to do what he pleases, but he may restrain them, as he thinks proper.
It has been said, that the license under which this vessel sailed, was issued after knowledge of the wai’ in England. This must be a mistake—it is dated on the 21st of July 1812, when the war was not known in England ; and it is to be presumed, that it was issued at the time it bears date. Being issued, therefore, before knowledge of the war, it does not give a hostile character to the vessel.
Harper.—The property is vested in the captors only when legally taken, it is vested sub modo.
Story, J.—That is the rule as laid down in the opinion of the court delivered this morning in the case of The Sally : the prize act vests only property lawfully captured.
Jones, in reply.—The captors may be punished, if guilty ; but the captured property must vest in them notwithstanding. The instruction applies 262
1814]
OF THE UNITED STATES.
The Thomas Gibbons.
426
only to American vessels : but the license, we stilb contend, gave the vessel in question a hostile character.
Where the instruction speaks of British merchandise, the meaning is British merchandise belonging to American citizens. This construction is consistent with all the acts of congress on the subject, especially the act of 2d January, remitting forfeitures, &c. It is consistent also with Mr. Bussell’s declarations to the British merchants. See 2d vol. of Reports of Committees, p. 30.
Wednesday, March 16th, 1814. (Absent, Marshall, Ch. J., and Johnson, J.) Story, J., delivered the opinion of the court.
*The ship Thomas Gibbons, laden with a cargo of British manu- rH. . factures, on account of British and American merchants, sailed from L Liverpool, in Great Britain, on the 16th August 1812, bound for Savannah, in Georgia, and was captured on the 12th of the ensuing October, on the high seas, off Tybee light-house, by the private armed vessel Atas, Thomas M. Newhall, commander, and on the same day, brought into Savannah as prize of war. The ship sailed from Liverpool under the protection of a special license, dated the 21st of July 1812, granted by Lord Sidmouth, by order of the privy council, whereby the ship and cargo were protected from British capture, not only on the voyage to the United States, but also on the return-voyage to Liverpool, in case the master should not be permitted to land the cargo in the United States ; and the master was further allowed, in case of return, to receive his freight, and proceed in ballast to any port not blockaded. The commission of the Atas was granted on the 24th of September 1812, accompanied by a copy of the president’s instruction of the 28th of August 1812.
A libel was filed in the district court of Georgia, upon which regulai’ proceedings were had against the ship, as prize of war. The respondents interposed their claims, and the district-attorney also interposed a claim in behalf of the United States. At the hearing, the district court dismissed the libel of the captors, and upon appeal, the decree was affirmed in the circuit court.
The principal question which has been moved at bar, is, whether the capture of the ship was lawful ? and that depends upon the authority of the president to issue that instruction, and upon the true construction of it, if rightfully issued.
As to the authority of the president, we do not think it necessary to consider how far he would be entitled, in his character of commander-in-chief of the army and navy of the United States, independent of any statute provision, to issue instructions for the government and direction of privateers. That question would deserve grave consideration ; and we should not be disposed to entertain the discussion of it, unless it become unavoidable. In the *case at bar, no decision on the point is necessary ; because we r*^28 are all of opinion, that, under the 8th section of the prize act of 1812, *-ch. 107, the president had full authority to issue the instruction of the 28th of August. That section provides, that the president shall be authorized “ to establish and order suitable instructions for the better governing and directing the conduct ” of private armed vessels commissioned under the act, their officers and crews. The language of this provision is very general, and in our opinion, it is entitled to a liberal construction, both upon the manifest intent of the legislature, and the ground of public policy.
263
428
SUPREME COURT
The Thomas Gibbons.
[Feb’y
It has been argued, that privateers acquire, by their commissions, a general right of capture, under the prize acts, which it is not in the president’s power to remove or restrain, while the commission is in force ; that therefore, his right to issue instructions must be construed as subordinate to the general authority derived from the commission ; and that, in this view, his instructions should extend only to the internal organization, discipline and conduct of privateers. We cannot, on mature deliberation, yield assent to this argument. It is very clear, that the president has, under the prize act, power to grant, annul and revoke, at his pleasure, the commissions of privateers ; and by the act declaring war, he is authorized to issue the commission in such form as he shall deem fit. The right of capture is entirely derived from the law : it is not an absolute, vested right which cannot be taken away or modified by law : it is a limited right, which is subject to all the restraints which the legislature has imposed, and is to be exercised in the manner which its wisdom has prescribed. The commission, therefore, is to be taken in its general terms, with reference to the laws under which it emanates, and as containing within itself all the qualifications and restrictions which the acts giving it existence have prescribed. In this view, the commission is qualified and restraind by the power of the president to issue instructions. The privateer takes it subject to such power, and contracts to act in obedience to all the instructions which the president may lawfully promulgate.
*219 01 Public policy, also, would confirm this construction. *Ithas been
-• the great object of every maritime nation, to restrain and regulate the conduct of its privateers : they are watched with great anxiety and vigilance, because thèy may often involve the nation, by irregularities of conduct, in serious controversies, not only with public enemies, but also with neutrals and allies. If a power did not exist to restrain their operations in war, the public faith might be violated, cartels and flags of truce might be disregarded, and endless embarrassments arise in the negotiations with foreign powers. Considerations of this weight and importance are not lightly to be disregarded ; and when the lanugage of the act is so broad and comprehensive, we should not feel at liberty to narrow or weaken its force, by a construction not pressed by the letter, or the spirit, or the policy of the clause. On the whole, we are all of opinion, that the instruction of the president of the 28th of August, is within the authority delegated to him by the prize act.
But it is argued, that, admitting its legal validity, this instruction cannot protect the ship and cargo from capture as prize of war, because the cargo was shipped, after a full knowledge of the war, and not “in consequence of the alleged repeal of the British orders in council.” We are of a different opinion. We think, that a shipment made even after a knowledge of the war, may well be deemed to have been made in consequence of the repeal of the orders in council, if made within so early a period as would leave a reasonable presumption that the knowledge of that repeal would induce a suspension of hostilities, on the part of the United States. Congress have evidently acted upon this principle ; and have themselves fixed the time (the 16th of September 1812), before which, shipments might be reasonably made upon the faith of that presumption. Act of 2d January 1813, ch. 149. We are not inclined to hold a less liberal construction in favor of the acts of
264
1814]	OF THE UNITED STATES.	429
The Thomas Gibbons.
individuals proceeding from a confidence in the avowed intentions of the government.
It is further argued, that the ship was not within the description of vessels intended by the instruction to be exempted from capture, because she was engaged in an illicit intercourse with the enemy, under an enemy passport, and therefore, was quasi enemy property. We *cannot assent to this argument. The vessels exempted from capture are *• “ vessels belonging to citizens of the United States, coming from British ports to the United States.” The ship, in this case, was duly documented as an American, was coming to the United States, and from a British port. How can it be possible to bring a case more perfectly within the terms of the description ? The argument proceeds upon the supposition, that by the mere act of illicit intercourse, the property of an American citizen becomes divested ipso facto ; but in point of law, this is not the operation of the rule. The property is only liable to be condemned as enemy property, or as adhering to the enemy, if righfully captured during the voyage. But it has never been supposed, that the documentary character of the ship itself, or the character of the owner, was completely changed for every other purpose. It is sufficient, however, in our opinion, that no such distinction as that assumed in the argument, is to be found in the instruction itself; and we, therefore, hold the case within the natural and ordinary import of the language.
It is further argued, that, at all events, the property intended to be protected by the instruction from capture, was American property, and not British property ; and therefore, that, as to the latter, the capture was rightful This is a question of some difficulty ; but on full consideration, a majority of the court are of opinion, that the instruction meant to protect all British merchandise on board an American ship, without any exception on account of British proprietary interest. It was supposed, that British as well as American merchants might, upon the repeal of the orders in council, be induced to make shipments, upon the faith that such repeal would suspend the further operations of hostilities. The government meant to reserve to themselves the ultimate disposal of such property, in order that they might restore or condemn it, as public policy or the national interests might require. This construction is supported and confirmed by the act of congress of 13th July 1813, ch. 10, which, after relinquishing to the captors all the right and title of the United States, to the property of British subjects, captured on the high seas, and shipped from British ports, since the declaration of war, expressly excepts such property as has been captured in violation *of the president’s instruction of the 28th of August 1812. p.oi In giving this construction, therefore, we are satisfied, that we con- L form to the import of the language of the instruction, and do not contravene any policy avowed by the government itself.
On the whole, we are of opinion, that the decree of the circuit court, dismissing the libel of the captors, ought to be affirmed, and that the cause should be remanded to the circuit court for further proceedings as between the United States and the claimants.
Decree affirmed.
265
431
SUPREME COURT
[Feb’y
Prince v. Bartlett, (a)
Priority of the United States.
In case of insolvency, the United States are not entitled to priority of payment, unless the insolvency be a legal and known insolvency, manifested by some notorious act of the debtor, pursuant to law.
Bartlett v. Prince, 9 Mass. 431, affirmed.
Error to the Supreme Judicial Court of Massachusetts, in an action of trover, in which was involved the construction of the acts of congress giving to the United States a right of priority in payment of the debts due by insolvent debtors. The case was submitted to the court, without argument, and is fully stated in the opinion which was delivered, as follows, by—
Duvall, J.—The material facts upon the record are these : On the 4th of June 1810, sundry goods, wares and merchandise, the property of Wellman & Ropes, were attached by the deputy of Bailey Bartlett, sheriff of the county of Essex, state of Massachusetts, by virtue of certain writs of attachment sued out by several creditors of Wellman & Ropes. On the 18th day of September 1810, two several executions, issued on judgments recovered by the United States against Wellman & Ropes, at the September term 1810, of the district court, held at Salem, on their joint and several bond for duties at the ^custom-house. The actions in which these judgments in favor of the United States were rendered, were first commenced on
J *the — day of August 1810 ; but no attachment of property was made thereon : on the 19th day of September following, two suits of attachment, in favor of the United States, one against Wellman, and one against Ropes, issued in due form of law, directed to the marshal of the district, or his deputy, returnable to the district court to be held in December then next ensuing.
On the 11th of October, in the same year, the goods, wares and merchandise before mentioned, being in custody of Bartlett, a sheriff of the county, and in a store hired by him for the purpose, Sprague, one of the appellants, and deputy of Prince, the marshal, after the refusal of the sheriff to open the store, forcibly broke into it and seized, attached and conveyed away the property which had been attached by the sheriff in the manner before stated, by virtue of the executions and writs of attachment in behalf of the United States, and disposed of it in satisfaction of the judgments.
Wellman & Ropes continued in business until the aforesaid 4th day of J une, and then failed ; and then were, and ever since have continued to be, debtors unable to pay their debts. Wellman has continued at his usual place of abode in Salem, ever since his failure, and has not for any whole day confined himself within his house, but has sometimes kept his person within doors, and had his doors fastened, and occasionally used other vigilance and caution to avoid any arrest of his person, for two or three weeks next following the said 4th day of June, but has never been arrested by any officer, or pursued for that purpose : Ropes has always continued at large in Salem, and has never confined or concealed himself from his creditors at any time.
(a) March 16th, 1814.
266
OF THE UNITED STATES.
Prince v. Bartlett.
1814]
432
An action of trover was commenced by Bartlett, the sheriff, for the property by him attached as aforesaid, against Prince and Sprague, who had thus forcibly dispossessed him of it, in the court of common pleas in Essex county, where, upon trial, judgment was rendered in favor of the defendants. An appeal was prayed and granted to the supreme judicial court of the commonwealth of Massachusetts, and at November term 1811, the cause came on to be tried upon the facts before stated. Upon the plea of not guilty and issue, *the counsel for Prince and Sprague insisted, that the several matters so alleged and proved in evidence on their part, ■-was sufficient to maintain the issue on their part, and to bar the plaintiff of his action. This was denied by the counsel for the plaintiff, and the judge who sat on the trial delivered his opinion to the jury, that the several matters produced and proved on the part of the defendants, were not, upon the whole case, sufficient to maintain the issue on the part of the defendants, and to bar the plaintiff of his action. With this direction, the jury found a verdict for the plaintiff, and 110,240.69 damages. To this opinion of the court, an exception was taken, and the proceedings removed by writ of error to this court.
The sole question for the consideration of this court is, whether the priority to which the United States are entitled by law, attaches in this case ? This priority is given by the 5th section of the act of the 3d of March 1797, ch. 74. It is also given by the 65th. section of the collection law, in the words following : “ And in all cases of insolvency, or where any estate in the hands of the executors, administrators of assigns shall be insufficient to pay all the debts due from the deceased, the debt or debts due to the United States on any .such bond or bonds shall be first satisfied.” In the same section, the legislature explain their meaning of insolvency, by declaring that it shall be deemed to extend as well to cases in which a debtor, not having sufficient property to pay all his debts, shall have made a voluntary asssign-ment thereof, for the benefit of his creditors, or in which the estate and effects of an absconding, concealed or absent debtor, shall have been attached by process of law, as to cases in which an act of legal bankruptcy shall have been committed.
At present there is no existing bankrupt law in the United States ; but in many of the states, provision is made by law for the relief of insolvent debtors. In the act of congress of the 4th of August 1790, the word insolvency only is used. In the acts lately passed on the same subject, the words insolvency and bankruptcy *are both adopted and appear to be used as synonymous terms.	*•
It is admitted, that the property seized by the attachments and executions before stated, was insufficient to satisfy the several claims exhibited, and that Wellman & Ropes were unable to pay their debts, but it does not appear, that their property was attached, as the effects of absconding, concealed or absent debtors ; nor does it appear, or is it even alleged, that they or either of them have made a voluntary assignment of their property for the benefit of their creditors ; nor is it alleged, that either of them has committed an act of legal bankruptcy. It appears to be the true construction of the act, to confine it to the cases of insolvency specified by the legislature. Insolvency must be understood to mean a legal and known insolvency, manifested by some notorious act of the debtor, pursuant to law : not a 267
434	SUPREME COURT	[Feb’y
The St. Lawrence.
vague allegation, which, in adjusting conflicting claims of the United States and individuals, against debtors, it would be difficult to ascertain.
The property in question being in the possession of the sheriff, by virtue of legal process, before the issuing the writ on behalf of the United States, was bound to satisfy the debts for which it was taken ; and the rights of the individual creditors, thus acquired, could not be defeated by the process on the part of the United States, subsequently issued. The court is of opinion, that priority does not attach in this case, and that there is no error in the judgment of the supreme judicial court of the commonwealth of Massachusetts.
Judgment affirmed.
The St. Lawrence, Webb, Master.
Trade with the enemy.—Suppression of papers.
A vessel sailing to an enemy’s country, after knowledge of the war, and taken, bringing from that country a cargo, consisting chiefly of enemy goods, is liable to confiscation as prize of war. Suppression of papers, where it appears to have been intentional and fraudulent, and attended with other suspicious circumstances, is good cause for refusing further proof.
But where the suppression appears to be owing to accident or mistake* and no other suspicious circumstances appear in the case, further proof may be allowed.
The St. Lawrence, 1 Gallis. 467, affirmed.
This was an appeal from the sentence of the United States Circuit Court for the district of New Hampshire. *The material facts of
J the case were as follows :
The ship St. Lawrence, Silas Webb, master, was captured, on the 20th of June 1813, by the private armed vessel America, and with her cargo, libelled as prize, in the district court of New Hampshire. On the proceedings which were had there, it appeared, that the St. Lawrence, owned by Robert Dickey, of New York, and Hugh Thompson, of Baltimore, arrived at Liverpool, from Sweden, in April 1813, with a cargo of iron and deals. In the month of May 1813, the agent of Dickey and Thompson entered into a contract for the sale of the St. Lawrence, with the house of Ogden, Richards & Selden, of Liverpool, the contract to be ratified or disaffirmed by Dickey and Thompson, and the bill of sale to be executed by them, in case of affirmance, to Andrew Ogden and James Heard, of New York, or either of them. On the 5th of May 1813, a license was granted by the privy council of Great Britain, to Thomas White, of London, and others, permitting them to export, direct to the United States, an enumerated cargo, in the St. Lawrence, provided she cleared out before the last day of that month. On the 30th of May 1813, she sailed from Liverpool for the United States, with the cargo specified in the license, Mr. Alexander McGregor and his family were passengers on board.
Upon the return of the monition in the district court, Andrew Ogden interposed a claim, in behalf of himself and McGregor, to the ship and part of the cargo. He also claimed another part of the cargo as his sole property. He likewise interposed a claim in favor of Selah Strong & Son ; of John Whitten ; of the firm , of Howard, Phelps & Co. ; of Abraham and George Smedes; of Peter and Ebenezer Irving & Co. ; of Henry Van Wart; of Irving & Smith ; of Jabez Harrison ; of Hugh R. Toler; and
• 268
1814]	OF THE UNITED STATES.	435
The St. Lawrence.
of Thomas C. Butler. This claim was an affidavit of Mr. Ogden, in which he swore that he had not a full knowledge of the concerns of all the persons from whom he claimed, but verily and fully believed that many of the said goods on board the St. Lawrence were sent in payment of debts due, previous to the war, to several of the persons for whom he claimed. This claim was filed on the(17th of August 1813.
*William Penniman, of Baltimore, also interposed a claim for five chests of merchandise, which he swore were purchased for him by L John Barnet, of London, prior to the war, with funds which he had in England eighteen months before the declaration of war, and in pursuance of orders given by him, nine months previous to that event. He also swore that he had at Baltimore, the original invoice of the purchase of said goods, and other documentary evidence to prove the aforesaid fact.
There was also a claim of the master for two cases and five trusses of merchandise, and six bolts of Russia duck. In none of these claims was there a designation of the marks or numbers of the casks, bales or cases which belonged to the different parties for whom the property was claimed.
The master, in answer to the 12th standing interrogatory, said, that for the names of the respective laders, he referred to the bills of lading. That the goods were mostly, if not all, consigned “ to order.” That the goods were to be delivered to order, at such place as the owners or consignees should appoint ; but that he did not know what interest any of the consignees or the shipper might have in the goods. In answer to the 16th interrogatory, the master stated, that his letter-bags, two in number, had been taken possession of, and sent to the custom-house : and that, as to any letter he had, directed to the consignees or owners, he had done what he had a right to do ; and that all his other papers had been forcibly taken away.
By Mr. McGregor’s answer to the 9th interrogatory, it appeared, that he was interested one-half part in the ship ; that his sole object in becoming interested in the ship was that of returning to the United States ; that he also owned one-half of the copperas and of the earthenware on board, shipped by Ogden, Richards & Selden, and as he believed, one-half of the coal, but that, as to the last article, he was not positive, no invoices of said goods having been delivered to the deponent.
*In relation to the vessel, Mr. McGregor deposed, that the only [-¡¡¡.„u document relative to the sale of the ship, he believed to be a letter to the former owners, from their agents, requesting them to make a bill of sale transferring said ship to Andrew Ogden and James Heard, or either of them, which he gave to Andrew Ogden.
It appeared further, from the examination of Mr. McGregor, that he was born in Scotland, was naturalized in the United States in 1795, had lived, the last seven years, in Liverpool, and was returning in the St. Lawrence, with his family, to the United States.
The goods claimed by Ogden as his sole property, were shipped by the house of Ogden, Richards & Selden. The two gentlemen last named resided at Liverpool.
The district court condemned the St. Lawrence and all the cargo, except the parts claimed by McGregor and the master. Both parties appealed from this decree to the circuit court, where the ship and whole cargo were condemned. From this decree, the claimants appealed to the supreme court, 269
437	SUPREME COURT	[Feb’y
The St. Lawrence.
where the cause was argued by Irving and Webster, for the claimants, and Pitman, for the captors.
Irving, for all the claimants, except McGregor and Penniman.—It is contended, on the part of the claimants generally—
1.	That the ship St. Lawrence, being an American vessel, owned and navigated wholly by citizens of the United States, and being on her return to the United States, with a cargo owned wholly by American citizens, could not legally be subject to capture by American cruizers.
2.	That the character of an American citizen, whether native or naturalized, is not rendered hostile, by his residence in a hostile country, if, within a reasonable time after the declaration of war, he withdraws with his funds from the hostile country and returns to his own : and that he has a right so to withdraw.
*40ci *3. That a citizen of the United States, not resident in the enemy J country, has also a right, after the declaration of war, to withdraw his funds, within a reasonable time, from that country.
4. That if the courts below were not satisfied that the property claimed was, bond fide, property of American citizens, fairly purchased and shipped, the said courts ought to have let the claimants into further proof fully to establish that fact ; and as they refused so to do, that the claimants are entitled, in this court, to the same privilege. The argument will be confined to this last point.
It will probably be urged, on the part of the captors, that the secreting of papers by the master, is good ground for refusing us further proof. We contend, that as the master was only the agent of the claimants to navigate the ship, his act is not sufficient to justify the court in such refusal. On this point, the court is referred to the following authorities. The Concordia, 1 Rob. 100, 119 ; The Hoop, Ibid. 109, 129 ; The Rernon, Ibid. 86, 102 ; The Polly, 2 Ibid. 296, 362 ; Chitty’s Law of Nations, App. 303 ; The Rising Sun, 2 Rob. 87, 104. The last case goes also to show that a claim may be made by an agent: and that too, without clearly distinguishing the rights of each particular claimant. See also, Ie Caux v. Eden, 2 Doug. 614.
Webster, for McGregor and Penniman, several claimants.—1. McGregor claims half the ship and part of the cargo. We contend, that a distinction is to be taken between an American citizen, domiciled in England at the breaking out of the war, withdrawing his funds, and an American citizen who goes to England, after the declaration of war, for the same purpose. That the former, whether a native or naturalized citizen, has a right (and perhaps it is his duty) to return to the United States with his effects. If he has no such right, why should the law of nations have provided a reasonable time for removing, in case of war? This rule of the law of nations *4qq-| *has been founded upon the necessity of the case, and upon the hard-ship which would attend the want of such a rule. A citizen of one country may lawfully go to any other country, in time of peace, and take up his residence there ; and it would be very hard, if he must suffer by the sudden and unexpected breaking out of a war—an event over which he had no control. A neutral would be permitted to withdraw his funds, in such a case ; and if we should allow the privilege to neutrals, why should we deny it to our own citizens ? The Vigilantia, 1 Rob. 1 ; Rell n. Gilson, 1 Bos.
270
183 4]	OF THE UNITED STATES.	439
The St. Lawrence.
&Pul. 355. The case of JEscott, cited in The Hoop, 1 Rob. 165, 196, may perhaps be thought to make against our claim. But the cases are not alike. In that case, Escott sent for his property : here, McGregor came with his.
A character gained by residence, is lost by non-residence. When McGregor ceased to reside in England, his character, if hostile before, no longer continued hostile. That it was not his intention to continue his residence in England, is clearly evidenced by his actual return to the United States with his family.
With regard .to his half of the ship, we contend, that if he had a right to return, he had a right to use the means necessary for that purpose ; he had a right to purchase a ship for the conveyance of himself and his family. So, if it was lawful for him to withdraw his funds, he might lawfully invest those funds in merchandise, if he could not otherwise withdraw them. The Madonna deUe Gracie, 4 Rob. 161, 195 ; The Indian Chief, 3 Ibid. 17, 12 ; The President, 5 Ibid. 248 ; The Ocean, Ibid. 84, 90 ; The Diana, Ibid. 60.
2. As to Penniman’s claim, we shall, at present, merely ask the court to allow us further proof.
Pitman, contra, contended, 1. That there was no legal evidence that the cargo belonged to the claimants, as claimed., 2. That from the origin and character of the voyage, and suppression of papers, concealed enemy interests were to be presumed ; that, therefore, all right to further p*.. „ *proof was forfeited, and that condemnation of the whole, as enemy’s property, must, ensue. 3. That the ship, at the time of capture, belonged to Dickey and Thompson, and was liable to condemnation on the ground of having gone to Liverpool, in April 1813, with a cargo of iron and deals, as well as from the circumstances of the voyage upon which she was captured. 4. That the ship and cargo, whether belonging to citizens or enemies, being taken in trade with the enemy, were clothed with a hostile character, and therefore, liable to condemnation.
Some other points were also touched upon in the course of the argument, viz : The want of proper claimants, of definite claims, and the requisite affidavits to support them. ' The connection of Ogden with a house of trade in the enemy country : the presumption that the partnership was, in fact, interested in what he claimed as his sole property ; and that he must be considered as a British merchant, in regard to those transactions originating with his house in Liverpool. The national character of McGregor, which presents' itself in the case of The Venus. The presumption that Van Wart resides in England, the claim being by Ogden for Irving and Smith, of New York, his consignees : and the effect of the license.
Tuesday, March 15th, 1814, the case was submitted, without further argument: and on—
Wednesday, March 16th (Absent, Marshall, Ch. J.), Livingston, J., after stating the facts of the case, delivered the opinion of the court, as follows :—
*From the manner in which the appellants have argued this r*. cause, it does not appear that they are very sanguine in their expec- L tations of our reversing the decree of the circuit court, on the evidence on which that court and the district court proceeded ; but that their chief hope
271
441	SUPREME COURT	[Feb’y
The St. Lawrence.
is derived from the further proof which they have it in their power to produce, provided an opportunity be afforded them for that purpose. Except as to the property claimed by Mr. Penniman and Mr. McGregor, this court does not perceive how the circuit court could have done otherwise, upon the proof before it, than confiscate the cargo of the St. Lawrence, as prize of war. Without meaning to decide, at present, on the right of an Ameri-can citizen, having funds in England, to withdraw them, after a declaration of war, or of the latitude which he may be allowed in the exercise of such a right, if it exists, we think the evidence would have justified the court in considering this property as belonging to enemies of the United States.
The St. Lawrence had gone to England, after the war was known, and had sailed from a British port, nearly one year after war had been declared : she was loaded in the country of the enemy, and by persons carrying on trade there : she was furnished with a British license, which extended both to British and American property : and the bills of lading, not being in a very common form, were well calculated to excite suspicion. But these circumstances, strong as they are, might, if everything had been fair, have been so explained as to have convinced the court that the property was truly Amer-ican. Was this done, or even attempted ? If we look at the conduct of the master and the claimants, we find them both acting in a way which left the court no other safe conclusion but that the cargo of the St. Lawrence was enemy property. The master, instead of delivering to the captors, or bringing into court the letters to the consignees, which, no doubt, covered invoices and bills of lading, lets us know, in a way not to be misunderstood, that he had delivered or sent them to the parties to whom they were addressed. Taking his examination, with the usual course of business, which is to accompany every shipment with a letter, no doubt can remain, that such letters were not only on board, but that they have been regularly received by the respec-*4421 ^ve Consignees ; for it is not pretended by the master, that they
J were taken from him by the captors. Here, then, is not only a subduction of very important papers by the master, but an acquiescence in such conduct, on the part of the consignees, and a continued suppression of the same papers, to this day. The only proof, then, which the court had of the interest of the claimants, except of Mr. Penniman’s, the master’s and Mr. McGregor’s, is in the claim of Mr. Ogden, who states, that he is not acquainted with their concerns, but believes they had an interest in the cargo ; without, however, attempting to designate the packages belonging to either of them. The court below, therefore, might fairly considei’ the claimants as having not only failed in making out a legal title to the property, but as concealing papers which would have shown a title elsewhere.
But if there was a defect of proof below, it is thought the claimants are entitled to time for further proof ; and that, if this be allowed, they will be able to show that the property in question was purchased, with American funds which were in England previous to the war, and that the claimants were the true and bond fide owners thereof. It is certainly not a matter of course, in this court, to make an order for further proof. When the parties are fully apprised of the nature of the proof which their case requires, and have it in their power to produce it, an appellate court should not readily listen to such an application : but when it appears that the parties who ask this indulgence have most pertinaciously withheld from the court, letters 272
1814]	OF THE UNITED STATES.	442
The St. Lawrence.
and other documentary testimony, which must be supposed, in this particular case, to have been in their possession, they come with a very ill grace to ask for any further time to make out their title. But if we examine the affidavits which have been made to obtain further time, we shall find them all silent as to the papers which they must have received by the St. Lawrence ; for in not one of them is a letter of that kind, or an invoice, mentioned ; nor do they deny that such letters or invoices were received by them. Under such circumstances, this court thinks that it cannot, consistent with the circumspection with which such applications ought always to be received, allow the appellants time for further proof. The master’s adventure, it is said, has been given up.
*Of Mr. Peniman’s claim the court thinks more favorably. In «¡.a the claim which he filed personally, he not only swears that the prop- L erty belongs to him, but states very particularly how and when it was purchased. He states, further, that the original invoice and other documentary evidence were at Baltimore; and in the affidavit made by Mr. Campbell,, during the present term, there is such a full and distinct history given of this whole transaction, founded upon original letters and bills of exchange,, that it is impossible to harbor one moment’s doubt, that the five chests of merchandise claimed by Mr. Penniman, did, at the time of shipment, and long before, belong to- him. To this affidavit is also annexed the original letter and invoice which he received by the St. Lawrence, which must dissipate every doubt on the question, if any had previously existed. Where so strong a case is made out, the court is willing to impute to accident or mistake the non-production of these papers below. Perhaps, Mr. Penniman thought he did sufficient, in stating they were in his possession. Certain it is, he could have no motive for suppressing papers which would have established so conclusively his title to the merchandise which he claimed. The court, therefore, allows him until next term, to make proof, by affidavit and the production of documents, of his right to the property claimed, at the time of its shipment at Liverpool; and the same indulgence is allowed tO' the captors.
In regard to the' claim of McGregor to a part of the cargo, there is also’ some difference between his case and that of many others of the claimants. He swears positively to his interest, but that no invoice was delivered to him by the shippers, Ogden, Richards & Selden. Ogden also swears to the interest of Mr. McGregor. Perhaps, this testimony is sufficient to satisfy a court, as it did satisfy the district court, that the property really belonged to Mr. McGregor. But if that be the case, other questions will arise, of too much importance to be decided on the last day of the term, and when the court is not full. Whether an American citizen has a right to withdraw his funds from the country of a belligerent, after a war; or, if he have, whether he have a right to charter a vessel for that purpose j and, if he may go thus far, whether he may bring British *goods, on freight, to this country, p* without affecting thereby the safety of his own goods ; are questions *-which the court does not now decide, and will, therefore,, suspend, at present, giving any final opinion on the claim of Mr. McGregor to a part of the cargo ; who, in the meantime, is also at liberty to make further proof on the same points with Mr. Penniman ; the captors having the same right.
It may be well doubted, whether Mr. Ogden and Mr. McGregor have
8 Crancii—18	2.73
444	SUPREME COURT	[Feb’y
The Hiram.
any title to the St. Lawrence : but whether she belong to them or to Messrs. Dickey and Thompson, her fate seems necessarily involved in the decision of The Rapid, which was made this term. She went to England, since the war, and is taken, bringing a cargo from that country. If the whole of the cargo had belonged to Mr. McGregor, or any other American returning with his property to the United States, the court means not to say, whether it would or would not have been cause of forfeiture : but when we find but a small portion of the cargo in that predicament, there can be no escape for her. The St. Lawrence was certainly guilty of trading with the enemy ; and being taken on her way from one of his ports to the United States, she is liable, on that ground, to be confiscated as prize of war, to whomever she might belong at the time.
Upon the whole, the sentence of the circuit court is affirmed in all its parts, with costs ; except so far as it condemned those portions of the cargo which were claimed by Mr. Penniman and Mr. McGregor, respecting which this court will advise until the next term.1
The Hiram, Barker, Master.
Enemy's license.
'Sailing on a voyage, under the license and passport of protection of the enemy, in furtherance of his views or interests, constitutes such an act of illegality, as subjects the ship and cargo to condemnation as prize of war.
.Sailing with a cargo of provisions to the port of a neutral, who is the ally of our enemy, in his war with another power, is such a furtherance of the views of our enemy.
'The Hiram, Fisher’s Pr. Cas. 69, reversed.
This was a case of capture, as prize, by the private armed brig Thorn, «duly commissioned by the president of the United States, and commanded by Asa Hooper, Esq.
*	_ *The Hiram, owned by Samuel G. Griffith, an American citizen,
J sailed from Baltimore, on or about the 24th of September 1812, with ;a cargo of flour and bread, on a voyage to Lisbon. She was captured on the 15th of October following, and sent into Marblehead, in the district of Massachusetts, for adjudication. She was libelled in the district court for the said district, by the .captors. The vessel was claimed by Barker, the master, in behalf of Samuel G. Griffith ; and the cargo by the supercargo, in behalf of said Griffith and various other shippers, American merchants, at Baltimore.
Among the papers found on board the Hiram, at the time of her capture, were certain papers commonly called a British license or protection, being a certified copy of a letter from Admiral Sawyer to Andrew Allen, Esq. late British consul at Boston, and an additional letter of safe-conduct from Mr. Allen. It appeared from the evidence, that this license was purchased from a citizen of the United States, and that apart of it was not filled up at the time of the purchase ; and that such licenses were a common article of sale in Baltimore and other places.
There was also found on board, the owner’s letter of instructions, in
1 For a further decision on this claim, see 9 Cr. 120.
274
1814]	OF THE UNITED STATES.	445
The Hiram.
which the supercargo was directed to remit the proceeds of the cargo, in bills of exchange or government bills, to the shipper’s correspondents in Liverpool; and moreover to sell the vessel at Lisbon, if an advantageous sale could be made, and remit the proceeds to England. It appeared from the evidence in the cause, that such remittances in bills of exchange were common among merchants.
The captors claimed condemnation of the vessel and cargo, 1. Because of the British protection or license. 2. Because the remittances were directed to be made in England, in bills of exchange. The district and circuit courts both decided, that *neither the vessel nor cargo were liable to condemnation; but allowed the captors their expenses.1 From the decree of the circuit court, both parties appealed.
Swann, for the claimants.—The opinions delivered in the cases of The Aurora and The Julia may, perhaps, upon first view, be considered as deciding the present case : but upon a closer examination, it will be found that the facts in this case differ materially from those which appeared in the two former. In the first place, in the case of The Aurora, there was an intent to supply the enemy ; there was an intent to trade with the enemy : there was a direct violation of the act of congress of 6th July 1812 : but here, there was no such violation. The license, in this case, was merely to trade with the neutral ports of Spain and Portugal. The present case differs from that of The Julia, inasmuch as the claim here is for the cargo only, and the license is for the vessel; whereas, there, the license extended as well to the cargo as the vessel.
But these papers do not, in fact, import a license : they only intimate an intended forbearance, on the part of Great Britain, to molest a lawful trade to Spain and Portugal. Here was no sailing under the protection of Great Britain. Again, this license, as it is called, was purchased as an article of commerce, from a private individual; not from Admiral Sawyer, nor from Mr. Allen : it is only a copy of Admiral Sawyer’s letter, certified by Allen. The obtaining such a copy of the letter was not unlawful. Besides, there is no evidence that Admiral Sawyer ever gave the directions mentioned in his letter, to the commanders of the squadron under his command, not to molest American vessels laden and bound as therein described. Indeed, his power to give such instructions does not appear : and if further proof be allowed, we can prove that licenses of this description were, in fact, disregarded in other cases.
* Dexter, contr&.—In answer to the argument, that the license in this case related to the vessel only, while the claim is for the cargo alone, it may be observed, that the owners of the cargo were the owners of the license, which ought, therefore, to be considered as extending to the cargo as well as to the vessel. The license was undoubtedly intended as a protection. The voyage was clearly undertaken in furtherance of the views of the British government, as expressed in Admiral Sawyer’s letter annexed to the pass : and I understand the ground of the decision in the case of The Aurora to be, that she sailed under the protection, and in furtherance of the views, of the enemy.
’For the opinion of Judge Davis in the district court, see Fisher’s Prize Cases 69.
275
447	SUPREME COURT	[Feb’y
The Hiram.
But if the court should not consider the sailing under the license sufficient cause of condemnation, we contend, that this was also a case of indirect trade with the enemy ; inasmuch as the proceeds of the cargo weie directed by the owner to be remitted from Lisbon to Liverpool, in bills of exchange.
Swann, in reply.—Buying a bill of exchange’ on England is not trading with the enemy. A man may, in an enemy country, purchase a ship from a neutral. The Countess of Lauderdale, 4 Rob. 232, 283. Sailing under an enemy’s pass, without trading with the enemy, is no cause of condemnation. There was not, in this case, such a subserviency to the views of the enemy, as ought to subject the property in question to the sentence prayed for by the captors. It is certainly lawful for the enemy to relax the rights of war : he may lawfully declare that he will suffer certain vessels to pass : and we conceive, that if those vessels sail under the faith of such a declaration, it is no cause of condemnation. The enemy might have declared, that he would not capture any vessel navigated wholly by Boston seamen ; but surely our government would not condemn a vessel for sailing under the faith of such a declaration.
*4481 *Wednesday, March 16th, 1814. (Absent, Marshall, Ch. J.)
J Washington, J., delivered the opinion of the court:—This vessel was the property of Samuel G. Griffith, an American citizen. On or about the 24th of September 1812, she sailed, with a cargo of flour and bread, from Baltimore to Lisbon ; and on her voyage thither, was captured, on the 15th of October following, by the privateer brig Thorn, and brought into the district of Massachusetts, where she and her cargo were libelled as being enemies’ property.
The brig was claimed by the master, in behalf of Griffith, and the cargo, by the supercargo, as belonging to the said Griffith, and other shippers, being American merchants of Baltimore. Among the papers found on board of this vessel, at the time of the capture, was a letter from Admiral Sawyer, dated the 5th of August 1812, addressed to Andrew Allen, jun., as British consul for the states of Massachusetts, New Hampshire, Rhode Island and Connecticut, which states, that, being aware of the importance of insuring a constant supply of flour and other dry provisions to Spain and Portugal, and to the West Indies, he should give directions to the commanders of his majesty’s squadron under his command, not to molest American vessels, unarmed, and so laden, bond fide bound to Portuguese or Spanish ports, whose papers should be accompanied with a certified copy of that letter, under the cohsular seal of the said Allen ; also a letter from the said Allen, dated 15th September 1812, addressed to all the officers of his majesty’s ships of war, or privateers belonging to subjects of his majesty, reciting that it is of vital importance to continue a full and regular supply of flour and other dry provisions to the ports of Spain and Portugal, or their colonies, and that, in consequence thereof, it has been thought expedient by his majesty’s government, that every degree of protection and encouragement should be given to American vessels so laden, and bound to the ports of Spain and Portugal, or their colonies, and that, in furtherance of these views of his majesty’s government, Admiral Sawyer had directed to him a letter, dated the 5th of August 1812 (a copy of which is annexed), 276
1814]	OF THE UNITED STATES.	*449
The Hiram.
with instructions to furnish American vessels, so laden and destined, *with a copy of his letter certified under his, the said Allen’s, consular seal, which documents are intended to serve as a perfect safe-guard and protection to such vessel in the prosecution of her voyage ; and that, in compliance with such instructions, he has granted to the American brig Hiram, whereof John B. Barker is master, now lying in the port of Baltimore, and laden with flour and bread, bound bond fide to Lisbon, a copy of the said Admiral Sawyer’s letter, certified under his consular seal, requesting all officers of his majesty’s ships of war, or of private armed vessels belonging to subjects of his majesty, not to offer any molestation to the said vessel, but, on the contrary, to grant her all proper assistance and protection on her passage to Lisbon, and on her return from thence to her port of departure, laden with salt, or in ballast only.
Under an order calling upon the different claimants to give further proof relative to the; British license found on board the brig, when and where it was obtained, of whom, and by whom, and on what terms, and, generally, relative to all facts and circumstances concerning the procurement of the same, William Hartshorn made an affidavit, stating that he purchased for Mr. Griffith, the owner of the vessel, in September 1812, from John R. Waddy, of Virginia, but then in Baltimore, a citizen of the United States, a license to protect a vessel laden with provisions and bound to Lisbon, from capture by British cruizers, for which he was to pay one dollar per barrel for what the vessel would carry, payable, $500 in cash, and the balance on the safe arrival of the vessel at Lisbon : that the said license was in blank, for inserting the names of any vessel and master : and that the blanks in the said license were filled up in his presence. This witness, as well as others, states that these licenses form an article of traffic in market, as much so as flour.
The vessel and cargo were acquitted in the district court, and a pro forma decree of affirmance made in the circuit court; from which decree, an appeal to this court was taken.
In the case of The Julia, decided at this court, it was laid down in general terms, “ that the sailing on a voyage, under the license and passport of protection of the *enemy, in furtherance of his views or interests, constitutes such an act of illegality as subjects the ship and cargo to L confiscation as prize of war ; ” and as explanatory of the general reasons for that opinion, a reference was made to the opinion of the learned judge who decided that case in the circuit court. It is contended by the counsel for the claimants, that the facts in this case differ so materially from those which appear in the case of The Julia, that the principles of law which ruled that case are inapplicable to this, and, consequently, ought not to govern the decision of the court upon it.
There certainly are some differences in the two cases ; and these were considered sufficiently strong by the district judge who acquitted this vessel and cargo, to condemn the Julia and her cargo. The important circumstance which appears to have influenced the decision of the district judge in that case, was, that the license contemplated the means of insuring a constant supply of dry provisions to the allied armies in Spain and Portugal, and consequently, an unlawful connection with the enemy to supply his armies, and a subserviency to the interests of that enemy. In this case, nc
277
450	SUPREME COURT	[Feb’y
The Joseph.
such views are expressed in the license of Admiral Sawyer ; yet the court must be wilfully blind, not to see that this was, in reality, the object of Admiral Sawyer and of Mr. Allen, and that it must have been so understood by those who sailed under this license.
In both cases, the allied armies were to be supplied, not by sales made directly to their agents (for this'is not required by either), but by carrying supplies to the Peninsula, which would indirectly come to their use. The license, as well as the letter of Allen accompanying it, points out the great importance of such supplies being sent to Spain and Portugal ; and the latter adds, that, in furtherance of these views of his majesty’s government, he had been directed by Admiral Sawyer to furnish a copy of his letter to vessels so laden and destined. Can it be said, that an American citizen, sailing under the protection of papers professing such to be the views of the British *a ii government, does not act in such a manner as to subserve *the views
J and interests of the enemy ? Upon the whole, the court is of opinion, that there is no substantial difference between this case and that of The Julia ; and that this is fully within the principle laid down by this court in deciding that case, and the reasoning to which it refers.
It was stated on the behalf of the claimants of the cargo, that they ought not to be affected by the illegal act of the owner of the vessel, in sailing under the protection of this license. It is a sufficient answer to this argument, to observe, that, in this case, the court must presume that the license was known to the owners of the cargo, if it was not the joint property of all. It is inconceivable, that the owner of the vessel should expend about $1600 for the protection of a cargo, in which it appears he was not largely concerned, without communicating such an advantage to his shippers, and even requiring some reimbursement, either by demanding higher freight, or compensation in some other way. But what is conclusive on this point, is, that an order for further proof in relation to this license was made, and yet no affidavit or proof is offered by any of the owners, denying a knowledge of these documents being on board. The decree must be reversed, and the vessel and cargo condemned to the captors as prize of war.
Decree reversed.
The Joseph, Sargent, Master.
Prize.—Hostile trade.
Case of hostile trade. Not excused by the necessity of obtaining funds to pay the expenses of the ship; nor by the opinion of an American minister, expressed to the master, that by undertaking the voyage, he would violate no law of the United States.
If an American vessel be captured on a circuitous voyage to the United States, in a former part of which voyage, she had been guilty of conduct subjecting her to confiscation, though at the time of capture, she is committing no illegal act, she must be condemned.
Where the termini of a voyage are already fixed, the continuity of such voyage cannot be broken,. by a voluntary deviation of the master, for the purpose of carrying on an intermediate trade.
A capture as prize of war may lawfully be made within the territorial limits of the United States, at any place below low-water mark.
The Joseph, 1 Gallis. 545, affirmed.
This was the case of a vessel, the Joseph, owned by American citizens, captured by the privateer Fame, on tho 16th of July 1813. The Joseph sailed from Boston, with a cargo on freight, on or about the 6th of April 278
1814]	OF THE UNITED STATES.	451
The Joseph.
1812, on a voyage to Liverpool and the north of Europe, and thence directly or indirectly to the United States. She arrived in Liverpool, and there discharged her cargo ; and on the 30th of June following, with another cargo of mahogany, taken in at Hull, sailed for St. Petersburg, under the protection of a British license, granted on the 8th of June 1812, authorizing *the export of mahogany to St. Petersburg, and the importation of a return-cargo to England. The brig arrived at St. Petersburg, and L there received news of the war* between the United States and Great Britain. About the 20th of October 1812, she sailed from St. Petersburg for London, with a cargo of hemp and iron on freight, consigned to merchants in London; and having wintered in Sweden, in the spring of 1813, she sailed, under convoy instructions from the British ship Ranger, for London, where she arrived and delivered her cargo. About the 29th of May, she sailed for the United States, in ballast, under a British license ; and was captured, on the 16th of July, at no great distance from Boston light-house. She was sent into the port of Salem, for adjudication as prize.
In the district court of Massachusetts, the claim of the owners, Messrs. Dall & Vose, was rejected, and the property condemned to the United States. From this decree, the captors and claimants appealed. In the circuit court, the property was condemned to the captors. From this decree, the claimants and the United States appealed.
It was contended, on the part of the claimants :
1.	That it was lawful, in June 1812 (before the war), to take the license to go from England to the north of Europe, and to bring back a cargo to England.
2.	That the taking a freight from the north of Europe to England, was from necessity to obtain funds to pay the debts of the ship, the master not having been able to sell the cargo at St. Petersburg for any price.
3.	That the opinion of the minister of the United States, at St. Petersburg, who told the master of the Joseph that there was no law against his returning to England, under the protection of his license, and who also sent dispatches by the Joseph to the government of the United States, though he knew of the intention to return to England, and thence to the United States, was, in effect, a license, especially as to the claim of the United States.
*4	. That there was no trade with the enemy, but with neutrals r*..« only ; the freight having been taken on neutral account, in a neutral L territory, and delivered to a neutral house in Great Britain.
5.	That if any offence was committed, it was completed upon the delivery of the freight in Great Britian ; and that, therefore, the vessel was not liable to capture or seizure, on that account, in a subsequent voyage from Great Britain to the United States.
6.	That if she was liable to seizure for having adopted the character of an enemy vessel, by any act contrary to the allegiance of the owners, yet she was not to be condemened as prize to the captors, as she was voluntarily returning to the United States and her port of discharge, and had actually arrived within the district of Massachusetts. That the capture, therefore, was not the occasion of her being brought in ; so that if she was liable at all, even as enemies’ property, the condemnation must be to the United States as a droit of admiralty. But—
279
453	SUPREME COURT	[Feb’y
The Joseph.
7.	That the vessel was not liable to be condemned to the United States, because the declaration of war was, in effect, an invitation, if not a command, to the citizens of the United States, abroad at the time, to return home, and the law allowed reasonable time and way to effect that return.
Pitman, for the captors, contended, 1. That the facts appearing in the case proved a trading with the enemy, which subjected the vessel to confiscation as prize.
2. That the vessel was not captured within the territorial jurisdiction of the United States : that this appeared from the preparatory examinations of the master and the mate, the first of whom stated “ that he was captured in sight of Half-way-rock, off Salem harbor,” which was a marine league from the shore ; and the latter, “ that the vessel was captured about two leagues east from Boston light-house.”
*454.1	*$• That, though the fact be admitted, as contended for by the
J claimants, yet the captors were authorized by their commission to capture within the territorial jurisdiction of the United States, on the high seas, which were stated in their instructions as extending to low-water mark.
Wednesday, March 16th, 1814. (Absent, Marshall, C. J.) Washington, J., after stating the iacts of the case, delivered the following opinion of the court:—After the decision of this court in the cases of The Rapid and of The Ship Alexander, it is not to be contended, that the sailing with a cargo, on freight, from St. Petersburg to London, after a full knowledge of the war, did not amount to such a trading with the enemy as to have subjected both the vessel and cargo to condemnation as prize of war, had she been captured whilst proceeding on that voyage. The alleged necessity of undertaking that voyage, to enable the master, out of the freight, to discharge his expenses at St. Petersburg, countenanced, as the master declares, by the opinion of our minister at St. Petersburg, that by undertaking such a voyage he would violate no law of the United States, although these considerations, if founded in truth, present a case of peculiar hardship, yet they afford no legal excuse which it is competent to this court to admit as the basis of its decision. See The Hoop, 1 Rob. 167 ; Potts v. Rell, 8 T. R. 554.
The counsel for the claimants seemed to be aware of the insufficiency of this ground, and applied their strength to show that the vessel was not taken in delicto, having finished the offensive voyage in which she was engaged, at London, and being captured on her return home and in ballast. It is not denied, that if she be taken during the same voyage in which the offence was committed, though after it was committed, she is considered as being still in delicto, and subject to confiscation ; but it is contended, that her voyage ended at London ; and that she was, on her return, embarked on a new voyage. This position is directly contrary to the facts in the case. The voyage was an entire one from the United States to England, thence to the north of *Europe, and thence directly or indirectly to J the United States. Even admit that the outward and homeward voyages could be separated, so as to render them two distinct voyages, which is not conceded, still it cannot be denied, that the termini of the homeward voyage were St. Petersburg and the United States. The continuity of such 280
1814]	OF THE UNITED STATES.	455
The Joseph.
a voyage cannot be broken by voluntary deviation of the master, for the purpose of carrying on an intermediate trade. That the going from St. Petersburg to London was not undertaken as a new voyage, is admitted by the claimants, who allege that it was undertaken as subsidiary to their voyage to the United States. It was, in short, a voyage from St. Petersburg to the United States, by the way of London ; and consequently, the vessel, during any part of that voyage, if seized for cohduct subjecting her to confiscation as prize of war, was seized in delicto.
Another objection relied upon by the claimants, is, that this vessel was captured within the territorial limits of the United States. The fact upon which this objection is raised is not clearly established one way or the other. But admit it to be as contended for by the claimants, the law is nevertheless against them. The commission granted to privateers authorizes them to seize and take any British vessels found within the jurisdictional limits of the United States, or elsewhere on the high seas, and to bring them in for adjudication ; and also to detain, seize and take all vessels and effects, to whomsoever belonging, which shall be liable thereto according to the law of nations and the rights of the United States, as prize of war. The first instructions given by the president to the private armed vessels of the United States, define the high seas, referred to in the commission, to extend to low-water mark, with the exception of the space of one league, or three miles, from the shore of countries at peace with Great Britain or the United States. The general expressions of the commission, explained by these instructions, and containing no exception but in relation to friendly powers, prove incontestibly, that all captures as prize of war may lawfully be made within the territorial limits of the United States, at any place below low-water mark.
The court is also of opinion, that there is no weight *in another objection made by the claimants, that this vessel was on her way and •-near to an American port, at the time she was captured. The right of the captor to the property which he may seize as prize of war, is derived under his commission, which is general and unqualified as to place and circumstances, and not from any peculiar merit which he may claim in any particular case. It is not for him to know whether a vessel which has offended against the law of nations, and is apparently destined to a port of the United States, will certainly enter the port: and certainly he is bound by no law to forego the opportunity which chance or his own vigilance may have presented to him to acquire property which, under his commission, he is authorized to appropriate to himself.
Decree affirmed.
281
456
SUPREME COURT
[Feb’y
The Geotius, Sheafe, Master.
Validity of capture.
Question as to the validity of capture; one man only having been put on board; the ship’s papers and the navigation of the vessel being left to the master. Further proof ordered.
Appeal from the sentence of the Circuit Court for the district of Massachusetts.
The Grotius, an American ship, owned by Thomas Sheafe and Charles Coffin, the claimants, sailed from Portsmouth, New Hampshire, March 2d, 1812, on a voyage, according to the shipping paper, from Portsmouth to one or more southern ports, and from thence to one or more ports in Europe, and back to her port of discharge in the United States, and to Portsmouth, if required. She arrived at New York, and sailed from thence, with a cargo for St. Petersburg, and arrived at Cronstadt on the 17th of June 1812. The cargo was owned by American merchants, and was consigned to a house at St. Petersburg. The consignees furnished a return-cargo on the credit of the outward cargo. After the return-cargo was put on board, the French armies having entered Russia, and threatening to approach St. Petersburg, the consignees were apprehensive that their security for the return-cargo might be lost. They arrested the ship and cargo, and would not permit her *..p,-, to *depart, but on condition that she should proceed to London, with . the cargo then on board, and that the master should sign bills of lading to deliver the property in London, to the order of the consignees ; they stipulating that if they should have obtained payment from the proceeds of .the outward cargo, the bills of lading should be given up to their owners or agents in London, and the cargo then to be at the disposition of the master.
The news of the war between the United States and Great Britain having reached St. Petersburg, the American ships in that port (fifty or sixty in number), with the knowledge and approbation of Mr. Adams, the American minister at the Court of St. Petersburg, sailed for England with British licenses. This was resorted to, as the only course in which it was possible to get home. The Grotius sailed, among others, with such license. Owing to the lateness of the season, she put into Carlscrona, Sweden, where she lay from the 28th of November 1812, until the 25th of March 1813. On the 2d day of May following, she arrived at London, and there discharged her cargo, consisting of iron, hemp and cordage, and on the 17th of June following, departed for the United States, in ballast. On the 29th of July, she was captured by the privateer Frolic, John Odiorne, commander, who put one man on board of her from the privateer. The captain of the Grotius kept his papers and the command of his ship, and navigated her to Boston. On her arrival, she was libelled in the district court of Massachusetts.
In this court, a question was made by the claimants, as to the fact of capture. The master, in answer to the 2d interrogatory, swore that he never considered the ship Grotius to have been taken or seized as prize : that he was present, when an armed schooner under English colors, met with her, the commander of which represented her to be a British privateer called the Bream, and requested him to take on board a man and treat him as a gentleman, until he arrived in the United States, to which he consented.
ci Gilman, the mate, in answer to the 2d and 3d interrogatories, stated, -1 that, until his arrival, he never knew *that the Grotius had been taken
282
1814]	OF THE UNITED STATES.	458
The Grotius.
as prize ; that the master had been ordered on board the schooner, and returned with Very, the man who had been taken on board the Grotius.
Chambers, a seaman, in answer to the 3d interrogatory, stated that the Grotius was met by an armed schooner, under Engligh colors, which obliged the mate of the ship to go on board her, and afterwards sent him back witfy a man who, on the next day, declared himself to be put on board as prizemaster, saying that if they should fall in with a French vessel, he should be obliged to show his commission.
The affidavit of Very, the alleged prize-master, confirms the statement of the mate, that the master was ordered on board the privateer, and that he, Very, was directed by his commander, in presence of the master of the Grotius, to go on board as prize-master ; but that the master of the ship was to keep possession of the papers, and to navigate her into port.
In the district court, the ship was condemned to the United States. From this decree, the captors and claimants appealed. In the circuit court, the decree of the district court was affirmed, pro forma, by consent of parties.
Webster, for the claimants, contended,—1. That, in this case, the ship was not captured, only one man having been put on board. That this case was not affected by the decision in the case of The Alexander. That a capture, as well as the bringing the vessel into port after the capture, must be the effect of power, either actual or constructive. That the master of the ship did not know of the intention to capture, nor had he any idea that his vessel was captured, until long after the alleged prize-master was put on board. That there was no agreement to consider it as a capture. And lastly, that there was no bringing in.
2.	That the proceeding to London, under the circumstances of this case, was not such a trading with the *enemy as induced a forfeiture of the r4s ship. That it was an act justified by the necessity of the case, there L being no other way to get the ship home; That the master was further justified in acting as he did, by the advice of Mr. Adams, the minister at St. Petersburg, where the ship was, when the war was first known there. The Hetty Cathcart, 1 Rob. 184, 220.
3.	That the ship was not taken in delicto ; that there was no trade with the enemy ; that the master merely delivered the cargo in London ; that the voyage was not to be considered as a continued voyage from the United States to Russia, from Russia to England, and from England to the United States, but merely as a voyage from Russia to London.
4.	That the privateers of the United States had no authority, either under the prize act or their commissions, to capture American vessels found in circumstances like those of the Grotius ; that is to say, bound directly to the United States, and within two or three days sail of her destined port. That if she was to be condemned at all, it must be as a droit of admiralty, not as prize to the captors. That privateers claim under a grant from the United States, and must be limited by the express terms of such grant, which ought to have a fair construction, and cannot be supposed to extend to cases where there is no risk, no trouble, no labor on the part of the captors. That the grant is to be considered as a reward for their services. That if a vessel is in port, either voluntarily or by stress of weather, she is no subject of capture.
283
459	SUPREME COURT	[Feb’y
The Grotius.
Pitman, contra, for the captors, contended, that the Grotius was liable to condemnation for having sailed from Russia to England with a British license, after knowledge of the war between Great Britain and the United States, and with contraband of war on board ; that the voyage was to be considered as one continued voyage from Russia to the United States ; that the vessel, therefore, if taken at any time before her arrival in the United States and in a place of safety, must be considered as captured in delicto. *4.ro1 That the case was analogous to that of a vessel captured *while com-
-* ing out of a blockaded port into which she had previously slipped by stealth. The Vrow Judith, 1 Rob. 126, 150 ; The Frederick Molke, Ibid. 72, 86. That physical force was not necessary to constitute capture ; that it had been so decided in the case of The Alexander; and that, if any doubt existed in the mind of the court with regard to the capture, it was a case for further proof. That the privateers of the United States were authorized to capture, even within the jurisdiction of the United States.
Dexter, in reply, urged, that although the master of the Grotius had heard of the war, he had also heard of the repeal of the orders in council, and that an armistice was about to be agreed upon, if it had not already taken place ; that, therefore, it was as if they had not heard of the war at all. That, in order to subject a vessel to condemnation, she must be captured in the prosecution of the voyage in which she was guilty of the offence : that the Grotius was not captured on that voyage : that the voyage from Russia to England was to be considered as a distinct voyage, after the completion of which, the vessel was not liable to condemnation for any offence committed on that voyage. That even if the proceeds of the cargo, previously deposited in England, had been on board, at the time of the capture, it would have been no cause of condemnation. That when the cargo was deposited, the offence was deposited with it. Park 239 (Am. ed.); The Rebeckah, 1 Rob. 193, 230, note; 2 Bro. Civ. Law 58, 250, 262.
Wednesday, March 16th, 1814. (Absent, Marshall, Ch. J.) Washington, J., delivered the opinion of the court, in this case, as follows :—This case differs in no material respect from that of The Joseph, just decided,, except that in this a question arises as to the validity of the capture. The master of the Grotius, in answer to the second standing interrogatory, swears that he hath never considered the ship to have been taken or seized as prize. That he was present when an armed schooner, under English col-* ors’ me^ w^h her, the commander of which represented her *to be a
-• British privateer called the Bream, and requested him to take on board a man, and treat him as a gentleman, until he arrived in the United States ; to which he consented. This testimony of the master is confirmed by Gilman, the mate, in answer to the 2d and 3d interrogatories, who adds, that Very, the man who was put on board, never conducted as prize-master, nor in any other manner than a passenger would, during the voyage. Pierce, one of the seamen, who accompanied the master on board the schooner, swears that he never knew the ship was seized as prize, until after her arrival within the Boston light-house. Chambers, another seaman belonging to the Grotius, in answer to the third interrogatory, says that she was met by an armed schooner, under English colors, which obliged the mate of the ship go on board her, and afterwards sent him back with a man 284
1814]	OF THE UNITED STATES.	461
Alexander v. Pendleton.
who, on the next day, declared himself to be put on board as prize-master, saying th at. if she should fall in with a French vessel, he should be obliged to show his commission. That he knows not upon what pretence or for what reasons he was taken, not knowing, in fact, that she was made prize of, until her arrival at Boston.
Daniel J. Very, the alleged prize-master, has deposed, on oath, that he was present at the capture of the Grotius by the Frolic ; that the master of the ship was ordered on board the schooner with his papers ; and that he, Very, was directed by his commander to go on board as prize-master, and this in the presence of the master of the Grotius ; that the master of the ship was to keep possession of the papers, and to navigate her into port. That he accordingly went on board as prize-master, carrying with him a copy of the commission of the Frolic; and instructions, in writing, from the commander to him (Very) as prize-master. That the master of the Grotius informed his crew, that in case a British cruizer should board the Grotius, and they should be asked respecting the said Very, they were to answer that he was a passenger.
Without giving any opinion as to the regularity of admitting the,affidavit of the prize-master as a part of the preparatory evidence, the court is of opinion, that the facts necessary for deciding upon the validity of the *capture, are not sufficiently clear ; and that it will be proper to r4. make an order for further proof, to be furnished by the captors and >• the claimants, with respect to all the circumstances of the capture. This point appears not to have been made or considered in the court below.
Order for further proof.
Alexander and others v. Pendleton*
Equity jurisdiction.—Notice.—Adverse possession.
If the case be clear, a court of equity will interpose to quiet the title.
A purchaser with notice is protected by his vendor’s want of notice.1
An adverse possession of fifty years, though with knowledge of a better title, constitutes a good defence against that title.
A purchaser without notice, has a right to join his adverse possession to the ostensible adverse possession of his vendor, so as to give himself the benefit of the statute of limitations.
This was an appeal from the Circuit Court for the district of Columbia, sitting at Alexandria, as a court of equity. The case, as stated by Marshall, Ch. J., in delivering the opinion of the court, was as follows :
This suit was brought in the year 1806, in the circuit court for the county of Alexandria, for the purpose of quieting the title of Nathaniel Pendleton, the plaintiff in that court, to 83 acres of land, contiguous to the town of Alexandria, which had been in his possession, and in the possession of those under whom he claims, from the year 1732 to the present time.
Robert Alexander, being seised of a large tract, on part of which the town of Alexandria now stands, on the 17th of January, in the year 1731-2, executed to Dade Massey, then about to intermarry with his daughter Par-
1 Bracken v. Miller, 4 W. & S. 102; Meehan v. W illiams, 48 Penn. St. 238 ; Rounds ».
McChesney, 7 Cow. 360; Bumpus v. Plainer, 1 Johns. Ch. 213 ; Wood v. Chapin, 13 N. Y. 509.
285
462	SUPREME COURT	[Feb’y
Alexander v. Pendleton.
thenia Alexander, his bond, in the penalty of 8004 with a condition that he would convey to his ’daughter Parthenia and her heirs, on demand, four hundred acres of land, lying on Potomac, “ beginning on the river side and from thence running to his back line, making a long square so as to have the same breadth on the river as on the back line.” The marriage soon afterwards took effect, and she was put into possession of the land, by the following bounds, that is to say : “ Beginning at the mouth of Going’s gut, on the * river Potomac, and extending down thè river so *as to include four
-* hundred acres of land between the river and the back line.”
The back line called for in the patent was a due north course ; that by which Robert Alexander then held was north 6° west. Claims have been since successfully asserted which would vary the back line so as to run north 17° west. The appellants insist that those who hold under Parthenia shall be compelled to extend to the back line, as now established, and propor-tionably to contract their line down the river, so that the parallelogram shall still comprize 400 acres. Pendleton, who is a purchaser under Parthenia, insists on being limited on the west by the line north 6° west, which was the back line when the title of Parthenia accrued.
In the year 1735, Robert Alexander departed this life, having first made his last will, in which he devised as follows : “ Item, I give to my daughter, Parthenia Massey, four hundred acres in Prince William county, according to my bond. Item, I give to my daughter, Sarah Alexander, four hundred acres joining Parthenia Massey, the same length on the back line and the same breadth on the river.” Parthenia survived her husband, Dade Massey, and intermarried with Townshend Dade. Sarah intermarried with Baldwin Dade, and was put into possession of the land devised to her.
John and Gerard Alexander were the only sons of Robert, and were the có-devisees of the bulk of his estate. In April 1740, John instituted, a suit against Gerard for partition ; and to this suit, Townshend Dade and Parthenia, his wife, and Baldwin Dade and Sarah, his wife, were parties defendants. A decree of partition was made, directing that the lands of the Dades also should be allotted to them to be held in severalty. Commissioners were appointed to execute this decree, with directions to report their proceedings to the court. Under this interlocutory decree, the land was surveyed by Joseph Berry, and a division made. Four hundred acres were allotted to Townshend Dade and Parthenia, his wife, and the same quantity *4.fUl Baldwin Dade and *Sarah, his wife. This allotment was made on
-* the idea that north 6° west was the true back line. But as the Alexanders intended to institute suits for the purpose of recovering lands lying west of the north 6° line, it was agreed between all the parties, that the partition then made should not be conclusive, but should depend on the suits about to be instituted. In consequence, as is presumed, of this verbal agreement, the survey and proceedings under this interlocutory decree were not returned ; and in May 1741, the suit was dismissed agreed.
Townshend Dade and Parthenia, his wife, remained in quiet possession of the 400 acres devised to Parthenia by her father, according to those boundaries which had been marked out, on the idea that north 6° west was the true back line.
Sarah Dade died without issue ; on which event, her land was limited to her two brothers John and Gerard, who entered thereon and continued to 286
1814]	OF THE UNITED STATES.,	464
Alexander v. Pendleton.
hold it according to Berry’s survey. John Carlyle claimed the land west of north 6° west; and, in April 1766, bommenced’an ejectment against Alexander, who appears to have recovered part of the land between north 6° and north 17° west in a previous ejectment against one of his tenants. In May 1771, a verdict and judgment were rendered in his favor.
In the year 1774, Townshend Dade and Parthenia, his wife, instituted a suit against John Alexander, for a title to the land mentioned in the bond of Robert Alexander. To this suit John Alexander filed his answer, stating the death of Dade Massey, leaving a son by Parthenia, her subsequent marriage with Townshend Dade, and the doubt who was entitled to the land, as the reasons for its not having been previously conveyed. In the same year, Charles Alexander, a son and heir of John, filed his answer, in which he states the doubt respecting the back line, admits the north 6° west to be the present back line, and prays that, should a more western boundary be at any time established, he and his heirs might be at liberty to vary the boundaries of Parthenia’s land, so as to conform to such future back line.
*In 1776, a deed was executed by Charles Alexander to Parthenia r*.R(-Dade, conveying 400 acres of land according to the bond of Robert L Alexander. This deed specifies no boundaries and contains no stipulation respecting the future change of the back line. It would confirm the will of Robert Alexander, if that will wanted confirmation. In the year 1779, this suit was dismissed, neither party appearing.
In May 1778, Parthenia Dade conveyed this tract of land, with no othei* description of the metes and bounds than was expressed in the bond and will of her father, to William Hartshorne, who took possession of the land and held it according to Berry’s survey, which makes north 6° west the back line. William Hartshorne laid off the northern part of the tract from the river to north 6° west in twenty-three lots which he sold to various persons ; and then, in May 1779, conveyed the residue of the land, which includes that in the controversy, to William Harman, of Pennsylvania, by metes and bounds, taking north 6° west to be the true back line.
In the year 1786, Mordecai Lewis, executor of William Harman, conveyed this land to Elisha Cullen Dick, who, in 1796, conveyed eighty-three acres, the land now in dispute, to Henry Lee; who, in June 1797, conveyed to Baldwin Dade, who, on the 29th day of December, in the year 1801, conveyed to Philip Fitzhugh, who, on the 18th of February 1802, conveyed to Nathaniel Pendleton. In the same deed, Fitzhugh conveys also to Pendleton three acres of land, other part of the tract of 400 acres, with.notice that Charles Alexander claims north 17° west as the back line.
Previous to the conveyance from Baldwin Dade to Philip Fitzhugh, the said Dade had conveyed the land in controversy to Thomas Swan, to secure a debt due to William Hodgson. Swan conveyed to William B. Page, in trust for Hodgson, who conveyed to Hodgson, who, in July 1803, conveyed to Pendleton.
Soon after the decision in favor of Carlyle, in May 1771, Charles Alexander brought an ejectment for the *same lands, and in 1790, a verdict was given in his favor, on which a judgment was rendered, L which was affirmed on appeal, in 1792. In 1796, Charles Alexander instituted a suit in the court of chancery in Virginia, for the purpose of altering the boundaries by which the land of Parthenia had theretofore been
287
466	SUPREME COURT	[Feb’y
Alexander v. Pendleton.
held, and of laying off that track so as to extend it to north 17° west, thereby narrowing its breadth where it stretches towards the town of Alexandria, and giving it more length. To this suit, those under whom Pendleton claims, with others, were made defendants. Charles Alexander departed this life, in the year 1806, and the suit has not been revived.
Nathaniel Pendleton, being about to sell the land in controversy, tendered to Charles Alexander a deed for quieting the title ; and, on his refusing to execute it, instituted a suit to compel him so to do. After the death of Charles Alexander, this suit was brought against the defendant, his widow and children.
In the circuit court, a decree was rendered in favor of the plaintiff, from which the defendants have appealed to this court.
The cause was argued last term, by Swann and Jones, for the appellants, and by E. J. Lee and C. Lee, for the appellee.
Swann, for the appellants.—The only question is, whether the long possession according to metes and bounds, gives a good title, notwithstanding the claim of Alexander to carry his back line so as to run north 17 degrees west; instead of north 6 degrees west.
The bond to convey to Parthenia in 1731-2, calls simply for the back line ; R. Alexander’s will, in 1735, devises the land to her by the same description ; and the deed of confirmation from Charles Alexander, in 1776, still refers to the back line. Whatever should be the back line of Alexander’s tract, was to be the western boundary of Parthenia’s 400 acres. In *46”! 1^0, a suit was instituted for partition, in which Parthenia was a
* -I party. A survey and partition was made, but was not acted upon by the court, because the parties all understood that the back line was unsettled, and the partition then made was agreed to be temporary, and to be reformed, if the back line should be carried farther to the westward than north 6 degrees west. This agreement, although verbal, was binding on Parthenia, at least, so far as to prevent her possession from being considered as adversary to Alexander, as to that part of the land which might be taken away upon settling the back line.
There was, therefore, no adverse possession until 1778, when Parthenia sold to Hartshorne. From 1778 to 1796, when C. Alexander instituted his suit in the court of chancery in Virginia, to alter the boundaries of the tract, there had not been twenty years of adverse possession. If Pendleton had looked back to his title, he would have found that it was never conveyed by metes and bounds, prior to 1778, and that the question of boundary was still unsettled. He purchased while that suit was pending, and therefore, must be presumed to have had notice of the claim.
E. J. Lee and C. Lee, contra.—This case is not affected by the question, which was the true back line of Alexander’s land. Neither Parthenia nor those claiming under her, were parties to any suit in which that question was litigated, and cannot, therefore, be bound by any decision on that point. At the date of the bond, and of Robert Alexander’s devise to Parthenia, he held only to the line north 6° west. The conveyance is to be taken most strongly against the grantor. In 1776,. when C. Alexander made the deed to Parthenia, he held only to the same line, and it had been at that time
288
1814]	OF THE UNITED STATES.	467
Alexander v. Pendleton.
established as his back line, by a judgment in the year 1771. If there were sufficient evidence of a parol agreement, it could be only an agreement to reconvey the land, if the back line should be settled further to the westward. Being a parol agreement to convey land, it would have been void by the statute of frauds.
*If Pendleton had notice of the pendency of C. Alexander’s suit p^gg in chancery to alter the boundaries, yet that suit was afterwards dis-continued, and there is no evidence that Hartshorne, or those claiming under him, had notice of the claim, until after they had made their purchases. Pendleton holds their rights, and can protect himself by their want of notice.
Jones, in reply.—There was nothing in the title to deceive purchasers. There was sufficient evidence on the face of the deed to show that the possession was temporary. They all refer to the back line of Howsen’s patent; and every purchaser would necessarily inquire where that line was. Upon the inquiry, he would find, either that the line was in dispute and unsettled, or that it had been settled at north 17 degrees west. The agreement was merely evidence of the nature of the possession, and was no more affected, in this respect, by the statute of frauds, than would be a simple declaration of the tenant, that he held not adversely to, but under, R. Alexander. If the title is to be quieted, it must be upon the principle that long possession by certain metes and bounds, induces a presumption that some deed had been made conformable to the possession. But such a presumption is rebutted by the agreement.
March 12th, 1814. Marshall, Ch. J., after stating the case, delivered the opinion of the court, as follows :—This being an application to restrain a person from the assertion of title in the ordinary course of judicial proceedings, the prayer of the bill ought not to be granted in a doubtful case ; but if the case be a clear one, the interposition of equity is allowable ; and the situation of the land adjoining a growing city, the number of persons who are consequently interested in the settlement of the question, and the numerous titles which depend *on it, give it peculiar claims to the atten-tion of the court.	L
By the laws which govern this case, a possession of thirty years, under some circumstances, and of fifty years, under any, constitutes a title against all the world. The appellee claiming under a possession, perhaps, from the year 1732, certainly, from the year 1741, has a complete title, unless something can be alleged by the plaintiffs in error which shall deprive him of the advantages of that possession. It is urged, that the contract of 1741, between the Alexanders and the Dades, made the latter trustees for the former with respect to that portion of the land included in Berry’s survey, which they had agreed to surrender, in the event of establishing a more western back line. And that, therefore, in computing time, we must commence with the sale from Parthenia Dade to William Hartshorne, in May 1778.
Had the land continued in possession of Parthenia Dade and her heirs, the question whether this contract was of unlimited duration, or contemplated some particular suit then intended to be brought, would merit consideration. But as the contract does not appear on the title papers, but was verbal, a purchaser for a valuable consideration could not be affected by it, 8 Cranch—19	289
469	SUPREME COURT	[Feb’y
Alexander v. Pendleton.
unless he was a purchaser with notice. Finding Parthenia Dade in the quiet and undisturbed possession of 400 acres of land, forming a parallellogram, limited on the west by the line north 6° west, he had a right to consider that line, as established, so far as respected the land of Parthenia. He was not bound to know that a private parol agreement existed, which would control the possession. This trust, therefore, no more passed with the land to Hartshorne, than would any other secret trust of which he had no knowledge.
The various suits which have been instituted by, and against the ancestors of the appellants cannot affect this cause. A suit not prosecuted to a decree or judgment is not constructive notice to a person not & pendente lite purchaser ; and were the law otherwise, those suits, until that instituted in *.	1796, would convey no notice of the *private agreement made in 1741.
J A knowledge of the suits, therefore, would not imply a knowledge of the trust ; and possession for fifty years, though with knowledge of a better title, if adversary, constitutes a good defence against that title.
In 1796, Charles Alexander instituted a suit against sundry persons, ^claiming the land in controversy, for the purpose of altering the boundaries which had been held by Parthenia, and those claiming under her, from the year 1732, and which had been surveyed under an interlocutory decree made by the court of chancery, in the year 1741. In defending themselves against this claim, the purchasers of the land had a right to unite the possession of Parthenia Dade to their possession, without being affected by a secret trust of which they had no notice. If upon the trial of that suit, a possession of ¡fifty years could not have been established, and if the court should have been of opinion, that this was not a case in which an adversary possession of thirty years would have constituted a bar, the merits of the title would have been necessarily investigated. But if Charles Alexander had permitted that suit to be dismissed, and had filed a new bill, he would not have been at liberty, in the computation of time, to avail himself of the pendency of the former suit, unless he could have connected the two suits together. The law is the same, where a suit terminates by abatement and is not revived ; such a suit takes no time out of the act of limitations. The title of Pendleton, therefore, has from that act all the benefit which can be derived from a possession from the year 1741, when a possession, ostensibly adversary, by metes and bounds, unquestionably commenced, to the institution of this suit in the year 1806. The deduction which the laws of Virginia make from all computations of time, in consequence of the war of the revolution, will not be sufficient to take this case out of the act of limitations. The appellee’s title, being secured by a possession of more than fifty years, is unquestionably good, and it is proper, that the doubts which hang over it, should be removed. There is no error in the proceedings of the circuit court, and the decree is affirmed.
Decree affirmed.
290
1814]
OF THE UNITED STATES.
*471
*Pratt and others v. Carroll.
Equity.—Specific performance.
After a lapse of seven years, the court will refuse to decree a specific performance of a contract, in the part execution of which the complainants, or those under whom they claim, have expended large sums of money, although the first default was on the part of the defendant, and although it be probable, that the failure of the defendant in that respect has prevented the completion of the execution of the contract on the part of the complainants; circumstances having so changed, that neither party could derive, from the execution of the contract, all the benefits which were at first expected.
This case appears to be fully stated by the Chief Justice in delivering the opinion of the court.
Marshall, Ch. J., delivered the opinion of the court, as follows :—This is an appeal from a decree of the Circuit Court for the district of Columbia, whereby a bill brought by the plaintiffs for the specific performance of a contract, was dismissed. The material facts are these :
Daniel Carroll, the defendant, was, previous to the establishment of the city of Washington, proprietor of a large tract of land, part of which lies within its present limits. This part was conveyed to trustees, one moiety for the use of the public, and the other moiety for the use of the said Carroll.
After the place for the seat of government had been selected, and the boundaries of the city marked out, the legislature of Maryland authorized the appointment of commissioners to superintend the affairs thereof, and among other powers, authorized them to divide the lots in the said city between the public and the original proprietors, and declared, that such divisions, made in a specified form, and certified by them, should revest in the original proprietors the legal estate whereof they were formerly seised in the lots and squares assigned to them respectively. The commissioners were also authorized to sell the lots retained for the public use, and on receiving the purchase-money, to convey to the purchasers. On the 23d of September 1793, James Greenleaf purchased from the commissioners 3000 lots lying in that part of the city which had been conveyed by Carroll ; and on the 24th of December 1793, James Greenleaf and Robert Morris made from the commissioners an additional purchase of 3000 lots. Neither the purchase-money being then paid, nor a division made, the legal title remained in the trustees, and was a security for the purchase-money. These contracts, if executed by conveyances, would *have vested in Green- p. leaf and Morris all the public lots which were intermingled with L those hereinafter stated to have been purchased by Greenleaf from Carroll.
On the 26th day of September, in the year 1793, the said Daniel Carroll and James Greenleaf entered into articles, whereby Daniel Carroll covenanted, in consideration of 54 and of the covenants Xherein-after mentioned, to convey to the said Greenleaf, twenty lots of ground in the city of Washington, fronting on South Capitol street, in all convenient speed after the lots in that part of the said street should be divided between the said Carroll and the commissioners of the public buildings. The said conveyances to be on condition, to be void, in case the said Greenleaf should not, within three years from that date, erect a good brick house on each lot, at least 25 feet front, 40 feet deep, and two stories high. And the said Carroll further
•	291
472
SUPREME COURT
[Feb’y
Pratt v. Carroll.
covenanted, that after the division, to be made of the land lying between the forks of the canal, between him and the commissioners, should be completed, he would sell to the said Greenleaf every other lot belonging, after such division, to the said Carroll, for the consideration afterwards mentioned in the said articles ; and would lay out the whole amount of the purchasemoney, when received, in building houses as near as well might be, to those erected and erecting by the said Greenleaf; and in case of selling any of his property, he would cause buildings, to the amount of the purchase-money, to be erected thereon. The said Greenleaf agreed to erect, on each of the first-mentioned twenty lots, one good brick house, at least 25 feet front, 40 feet deep, and two stories high, within three years from the date, and to reconvey any of the said 20 lots, not built upon within the time, and pay 100?. for each of the said lots, not so built upon ; to pay 30Z. for each of the other lots to be purchased ; to lay out on the last-mentioned lots the sum of 3000?. within two years, and the further sum of 3000?. within four years ; to pay one-half of the amount of the purchase-money, with interest, within two years, and the remainder, with interest, within four years. Carroll to make deeds for the last-mentioned lots purchased, as the money should be paid. The parties bound themselves each to the other in the penal sum of 20,000?.
*4’7^1 *On 8th June 1705, it was agreed between the same parties, J to change the contract so far as that the said Greenleaf should build twenty brick houses of such description as he should judge proper, provided they are two stories high, and cover an equal extent of ground with the houses before mentioned, and of which the one moiety, or ten houses, should be built on the south part of square numbered 651, and the residue on the east side of said square.
In July 1794, a partial division was made between Carroll and Greenleaf, by which the square No. 651 was allotted to the latter. It was on this square that the twenty houses mentioned in the contracts between the parties were intended to be built.
On the 13th of May 1796, James Greenleaf, in pursuance of articles made July 10th, 1795, assigned his contract with Carroll to Morris and Nicholson, to whom he also transferred his interest in a large portion of the lots purchased from the commissioners. In the summer of 1796, Morris and Nicholson came to the city of Washington, when a division of the lots was completed, which was reported to the commissioners, on the 14th of September, by whom it was then ratified. Twenty brick houses were erected on the square 651, and covered in by the.26th September 1796, the time specified in the contract. Some of them were completed. In May 1797, Daniel Carroll entered into the square 651, and took possession of the buildings thereon, which he has held ever since, and has permitted them to be greatly injured.
Morris and Nicholson conveyed their property in the city, to the plaintiffs, in trust for certain creditors, by deed bearing date the 26th day of June 1797, and became bankrupts. This bill was filed in December 1804, claiming a specific performance of the whole contract of September 1793, or, if the court should be of opinion, that the contract ought to be divided, the plaintiffs prayed for a specific performance of that part of it which respects the twenty lots, on which they said houses had been erected in con-292
1814]	OF THE UNITED STATES.	473
Pratt v. Carroll.
formity with their agreement. They contended, that the non-execution on their part of so much of the contract of September 1793, as remained to be *performed, was not to be ascribed to any fault of theirs, but to the [*¿*4 failure of Carroll to convey the lots he had stipulated to convey. L
On the part of the defendant, it is contended, that he could not convey, until a division should be made and sanctioned by the commissioners, and that it was as much the duty of Greenleaf, as of himself, to attend to the division. That his great motive for entering into the contract was, by improving that part of the city in which his property lay, to increase its value and to give the town that direction. That this, from the failure of the other contracting party to perform his covenants, had become impossible : that the consideration on which he was to convey, could not now be received ; and that it would, therefore, be iniquitous to compel a conveyance.
This court is clearly of opinion, that by the contract of September 1793, Daniel Carroll was bound to convey to Greenleaf the property therein mentioned, without waiting for the execution of the contract on the part of Greenleaf. Being so bound, he ought to have taken those steps which were within his power, and which were necessary to be taken, in order to enable him to perform his engagements. He ought, therefore, to have obtained from the commissioners that act which would revest in himself the property to be conveyed.
It is true, that Greenleaf, having purchased the public lots, must have concurred in the division, and, had he declined coming to one, his default would have excused Carroll. But it is not pretended, that he ever declined a division. It is true, that his omitting to press one, is a proof that, for some time at least, he was not anxious on the subject; and this diminishes the blame which might otherwise attach to Carroll for his inattention to so material a circumstance.
But in July 1794, a division between Carroll and Greenleaf of several squares was made, and the square on which the twenty houses were to be erected was, among others, assigned to Greenleaf. There is no excuse for the delay of Carroll in enabling himself to convey the lots assigned to Greenleaf in this division. He *alleges, that, as the calculations of their contents were inaccurate, the confirmation of this division by the L commissioners was necessarily deferred, until this matter should be adjusted. But the court cannot admit the sufficiency of this apology. Any inaccuracy in the calculations would be adjusted by allowances in the divisions afterwards to be made of the remaining lots.
It appears, that in February 1796, Robert Morris offered the first payment stipulated in-the contract of September 1793, with the interest which had accrued thereon, and demanded deeds for the twenty lots. In this letter, Morris consents that these deeds should be executed as an escrow, to be delivered, on their fulfilling that part of the contract, by building twenty houses on the said lots, and proposes that separate deeds should be executed, that so many might be delivered as Morris and Nicholson should entitle themselves to. He also demanded a conveyance of so many lots, as the money offered would pay for, and required that Carroll should perform that part of his contract, which required him to lay out half the money received in improving adjacent lots. This is the substance of Morris’s letter, dated 22d February 1796, directed to Mr. Cranch, the agent of Morris, which
293
475	SUPREME COURT	[Feb’y
Pratt v. Carroll.
appears by Carroll’s letter, written on the 29th of the same month, to have been laid before him, although Mr. Cranch does not recollect the fact. The conveyances, however, were not made nor the money paid.
Although the covenant to convey is not a condition precedent on the performance of which the covenant to build depends, yet both from the words of the contract and the nature of the transaction, it was apparently the expectation of the parties, that the conveyance would precede the building. Nor was the conveyance an immaterial circumstance. In any state of things, it was an important part of the contract, and in the events which have actually occurred, it was so important, as to render it probable that the failure of Carroll in this respect, has prevented the completion of the twenty buildings. Under this view of the case, had the bill demanding a specific performance, been brought immediately after the entry of Mr. Carroll, in May 1797, the claim of the plaintiffs would certainly have been entitled
*t'° serious attention, and might perhaps have prevailed. It was not
J then too late, by executing the contract, to have effected its great object. But the state of things is now entirely altered. The effort to give the city that direction would now, according to every reasonable calculation, be unavailing. Time, therefore, in this contract was essential ; and although, in consequence of the failure of Carroll to convey, the court might have relieved against a forfeiture, so long as an execution of the contract could place the parties essentially in the situation in which they would have stood had exact punctuality been observed ; yet equity cannot relieve, where it is impossible to place the parties in the same situation, and when real fault is imputable to the person praying the aid of the court. So far then as Morris and Nicholson have failed to execute the contract of September 1793, the plaintiffs are too late to be entitled to the aid of this court.
But it is contended, that Morris and Nicholson have fully complied with that part of the contract which respected building twenty houses, and are, therefore, entitled to a conveyance of the twenty lots. The description of the houses to be built is so indefinite as to be satisfied, it is said, by running up the brick walls, and putting on the roofs. The court is not of that opinion. On fair construction, the contract requires that the houses should be fit for the habitation of families. No particular degree or kind of finishing is prescribed ; but a building cannot be fairly denominated “ a good brick house,” until it bé rendered a comfortable dwelling, fit for the reception of a tenant. This was certainly contemplated by the parties, and a different construction would tolerate an unfair and fraudulent execution of the agreement.
But although the twenty houses were not all completed, some of them were, and on examining the contract, it appears, that • Greenleaf and his assigns were entitled to a lot for each house they should build. The contract, with respect to the twenty lots, was not entire. It was not necessary to perform the whole contract, or to forfeit the whole property ; that which was, as well as that which was not improved. This will be clearly perceived on a reference to the contract itself.
*47H1 *Carroll covenants to convey lots, with condition to be void, if
J Greenleaf shall not, within three years, erect a good brick house, of stipulated dimensions, on each lot. Greenleaf agrees to erect the houses, and covenants to reconvey any lot not built upon within the time, and to pay 1004 fox* each lot not so built upon. This stipulation obviously severs 294
1814]	OF THE UNITED STATES.	477
Pratt v. Carroll.
the contract with respect to each lot. Only those not built upon were to be reconveyed, and for each lot reconveyed there was a forfeiture of 100?..
So far as the contract has been executed by Greenleaf, or his assigns, he and they ought to be placed in the same situation as if it had been executed by Carroll also. Had it been executed by him, the title of Morris and Nicholson to as many lots as they had erected houses of the description agreed upon, would have been absolute. It could not have been defeated, by their failure to perform the residue of the contract. Carroll ought not to enable himself to defeat it, by having broken his contract.
The plaintiffs then ought to have a conveyance of so many lots as shall be equal to the number of houses they have completed, under the agreement of September 1793, and as Carroll’s entry in May 1797, was so far tortious, he ought to be accountable for the injury sustained by the property, and for rents and profits from that time. But as the same contract binds Greenleaf and his assigns to pay 100?. for each lot not improved, and as the court does not consider this as a mere penalty, but as damages assessed by the parties themselves, the plaintiffs will not be entitled to a conveyance of the lots which were improved, without paying 100?. with interest from the 6th of May 1797, the time when the contract was determined by the entry of Carroll, on each unimproved lot. It is at their election, to obtain a specific performance on these terms, or to abandon their claim.
It is the opinion of this court, that the decree of the circuit court ought to be reversed and annulled, and the cause remanded with directions to take an account of rents and profits which have been or might have been received by the defendant on the houses which have *been completed by Mor- .* ris and Nicholson on the twenty lots in the proceedings mentioned ; •-and also to take an account of the money, with interest thereon, which was demandable by the defendant on each unimproved lot ; and that an issue, to be tried either in Alexandria or Washington, be directed to ascertain what damages have been sustained by the houses built by Morris and Nicholson, previous to the 6th of May 1797, whether finished or unfinished, on those lots which shall be decreed to be conveyed to the plaintiffs, since the entry then made by the defendant ; and that on receiving the balance, if any, which may remain due to the said Carroll, after deducting the rents and profits before mentioned, and the damages aforesaid, he be directed to convey to the plaintiffs a number of standard lots, which shall be equal to the number of houses completed by the said Morris and Nicholson, in pursuance of the contract of September 1793 ; the said lots to be those on which the houses stand, which may have been completed, and if there be more than one house standing on the same standard lot, so that it may be nfecessary to convey lots, not fully improved, in order to make the quantity of ground equal to the superficial contents of the standard lots to be conveyed, then such standard lots are to be laid off by direction of the circuit court, in such manner as may be equitable and convenient; provided, that the ground improved or built upon by Morris and Nicholson under the said contract, and re-entered upon by the defendant, in May 1797, be appropriated in the first instance so far as the same shall suffice or be necessary to make up' the quantity of ground to be conveyed to the plaintiffs, but so appropriated that no lot shall be divided, unless it be necessary to convey part of a lot, in order to make up the full quantity of six standard lots.
295
INDEX
TO THE
PRINCIPAL MATTERS IN THIS VOLUME.
The References in this Index are to the Star *pages.
ABANDONMENT.
1.	If a cargo consists partly of memorandum articles, no abandonment, for mere deterioration in value, during the voyage, can be valid, unless the damage, on the non-memorandum articles, exceed a moiety of the value of the whole cargo, including the memorandum articles. Marcadier v. Chesapeake Ins. Co.*m
ABATEMENT.
1.	If there be several tenants, claiming several parcels of land, by distinct titles, they cannot lawfully be joined in one writ of right; and if they be, they may plead in abatement of the writ.. Green v. Liter..........*230
2.	If the demandant demand against any tenant more land than he holds, he may plead nontenure, as to the parcel not holden; but the writ will abate only as to the parcel whereof non-tenure is pleaded, and admitted, or proved............................  Id.
3.	Under the act of Kentucky to amend process in chancery and common law, the party may recover, although he prove only part of the claim in his declaration; but it does not enable him to join parties in an action, who could not be joined at the common law. .Id.
4.	Notwithstanding the act of Virginia of 1786, reforming the method of proceeding in writs of right, the tenant still has the full benefit of the ordinary pleas in abatement..Id.
5.	If tenants, claiming different parcels of land, by distinct titles, omit to plead that matter in abatement, and join the mise, it is an admission that they are joint-tenants of the whole; and the verdict, if for the demandant, for any parcel of the land, may be general, that he hath more mere right to hold the same than the tenants; and if of any
parcel, for the tenants, that they have more mere right to hold the same than the demandant....................................Id.
See Bankrupt.
ADJUSTMENT.
See Insurance.
ADMINISTRATION.
1.	So long as a qualified executor is capable of exercising the authority with which he has been invested by the testator, that authority cannot be conferred, either with or without limitation, by the court of ordinary, on any other person ; and if, during such capability of the executor, the ordinary grant administration, either absolute or temporary, to another person, that grant is absolutely void. Griffith v. Frazier.................*9
ADMIRALTY.
1.	The penalty of the 50th section of the collection law of 2d of March 1799, which requires a permit for the landing of goods imported, applies to goods the importation of which is prohibited by law. Harford v.
United States......................*109
2.	British property, found in the United States, on land, at the commencement of hostilities with Great Britain, cannot be condemned as enemy’s property, without a legislative act, authorizing its confiscation. The act of the legislature, declaring war, is not such an act. Brown v. United States...............*110
3.	Timber, floated into a salt-water creek, where the tide ebbs and flows, leaving the ends of the timber resting on the mud at
297
480
INDEX.
low-water, and prevented, by booms, from floating'away at high-water, is to be considered as landed..........................Id.
4.	After a declaration of war, an American citizen cannot lawfully send a vessel to the enemy’s country, to bring away his property. The Rapid..................................*155
• 5. A vessel, owned by citizens of the United States, on her voyage from Naples to the United States, hears of the declaration of war between the United States and Great Britain, and having a British license to carry her cargo to Great Britain, changes her course for that country; is captured by the British, libelled and acquitted upon her license; sells her cargo, purchases a returncargo, sails for the United States, and is captured by an American cruiser: good prize. The Alexander.......................*169
6. It is a good capture, although only a prizemaster be put on board......................Id.
*J. The sailing, on a voyage, under the license and passport of protection of the enemy, in furtherance of his views or interests, constitutes such an act of illegality as subjects the ship and cargo to confiscation as prize of war. The Julia, *181; The Aurora, *203; The Hiram,.....................................*444
8.	The acceptance and use of an enemy’s license, on a voyage to a neutral port, prosecuted in furtherance of the enemy’s avowed objects, is illegal, and subjects vessel and cargo to confiscation. The Aurora... .*203
9.	It is not necessary, in order to subject the property to condemnation, for sailing under an enemy’s license, that the person granting the license should be duly authorized to grant it, provided the person receiving it take it with the expectation that it will protect his property from the enemy.....................Id.
10.	The case of a vessel and cargo, belonging to a citizen of one belligerent nation, captured on the high seas by a cruiser of the other belligerent, given to a neutral, and by him brought into a port, and libelled in a court of his own country, between which and the nation to which the vessel originally belonged war breaks out, before final adjudication, is a case of salvage; one moiety adjudged to the libellants and the other moiety to remain subject to the future order of the court below; and to be restored to the original owner, after the termination of the war, unless legislative provision should previously be made for the confiscation of enemy’s property found in the country at the declaration of war. The act of bringing in the cargo, although consisting of articles the importation of which was prohibited by law, was not, under such circumstances, a clause for forfeiture of the property. The Adventure........................	.*221
298
11.	If a citizen of the United States establish his domicil in a foreign country, between which and the United States hostilities afterwards break out, any property shipped by such citizen, before knowledge of the war, and captured by an American cruiser, after the declaration of war, is good prize. The Venus.....................................*253
12.	Upon a shipment of goods, to be sold on joint account of the shipper and consignee, or of the shipper alone, at the option of the consignee, the right of property does not vest in the consignee, until he has made his election.. ....................................Id.
13.	If two partners own jointly a commercial house in New York, and one of them obtain an American register for a ship, by swearing that he, together with his partner, of the city of New York, merchant, are the only owners of the vessel, when in fact his partner was domiciled in England, the vessel is liable to forfeiture, under the act of congress of December 31st, 1792.....................Id.
14.	Goods purchased by British merchants, before the war between the United States and Great Britain, in pursuance of orders from American citizens, and shipped to the agent of the British merchants in the United States (who was also an American citizen), “ on account and risk of an American citizen ” (no circumstances of fraud or unfairness appearing in the transaction), were vested in the American citizens, at the time of shipment, and were not liable to condemnation, although the vessel sailed from England after the declaration of war was known there. The Merrimack.............................*317
15.	But if goods be purchased as above, although the accompanying invoices, bills of lading and letters be addressed to the American citizens for whom the purchases were made, and all concur to show the property to be in them, yet if these documents be inclosed in a letter from the shippers to their agent in the United States, directing him not to deliver the goods, in a certain event, nor until he should have received payment in cash, the property in the goods continued in the shipper at the time of capture, and they were liable to condemnation..........................  Id.
16.	Goods, by the same ship, purchased as above, and consigned to the agent of the consignors (being an American citizen), in whose name the bill of lading was made out, but the bills of parcels and invoice in the name of the American merchants for whom the purchases were made; the shipment also being expressed to be on their account, although the goods are spoken of in the letter of the consignors as British property; vested in the American merchants at the time of
INDEX.
481
shipment; and where not liable to condemnation. The circumstance that the goods continued, during the whole voyage, at the risk of the shippers, W immaterial.....Id.
17.	A British subject, naturalized in the United States, went, to Great Britain, in a time of peace, for the purpose of trade, but with the intentlbn to return to the United States; he continued in Great Britain a year after his knowledge of war between Great Britain and the United States, for the purpose of winding up the business; but engaged in no new commercial transactions with the enemy, and actually returned to the United States in a little more than a year after knowledge of the war; yet he was considered as an enemy, and his goods were condemned. The Frances, Thompson's Claim..............*335
18.	Goods appearing by the ship’s papers to be a consignment from alien enemies to American merchants,, were condemned in toto, although further proof was offered, that American merchants were jointly interested, and that they had a lien upon the goods, in consequence of advances made by them. Further proofs on those points refused..........Id.
19.	Where the affidavits produced on the order for further proof are positive, although their credibility be impaired by the non-production of letters mentioned therein, yet a second order for further proof will be allowed in the appellate court. The Frances, Graham's Claim\.*348
20.	Goods shipped by a British merchant to an American house (partly in conformity with orders, and partly without orders), who had an option to accept or reject the whole invoice, in a limited time, remain the property of the shippers, until the election be made to accept them. The Frances, Dunham Claim...............................  .*354
21.	An intention of a consignor of goods to vest the right of property in the consignee, is not sufficient to effect such a change of property, until the goods are received by the consignee, or some evidence is given of his agreement to take them on his own account; until that time, the goods are at the risk of the shippers; and if they are enemies, the goods, if captured, are good prize. The result is the same, although the consignee be the agent of a third person, who had directed him to order the goods, unless it appear that he did actually order them. The Frances, French! s Claim.................... *359
22.	The commercial domicil of a merchant, at the time of the capture of his goods, determines the character of those goods, hostile or neutral. The Frances, Gillespie's Claim.*363
23.	Property engaged in an illicit intercourse with the enemy, is to be condemned to the
captors, not to the United States. A municipal forfeiture, under the laws of the United States, is absorbed in the more general operation of the law of war. The prize act of 26th June 1812, operates as a grant from the United States to the captors, of all property rightfully captured by commissioned privateers, as prize of war.	The Sally......*382
24.	Further proof, inconsistent with that already in the case, will not be admitted. The Euphrates..............................  *385
25.	The forfeiture of goods, for violation of the non-intercourse act of March 1st, 1809, takes place, upon the commission of the offence, and avoids a subsequent sale to an innocent purchaser, although there may have been a regular permit for landing the goods, and although the duties may have been paid. United States v. Bags of Coffee..........*398
26.	A forfeiture under the 3d section of the act of 28th June 1809, will overreach a bond fide sale to a purchaser for valuable consideration, without notice of the offence. United States v. Brig Mars......................*417
27.	No lien upon enemy’s property, by way of pledge for the payment of purchase-money, or otherwise, is sufficient to defeat the rights of the captors, in a prize court, unless in very peculiar cases, where the lien is imposed by a general law of the mercantile world, independent of any contract between the parties. The Frances, Irvin's Claim...............*418
28.	Where goods are sent upon the account and risk of the shipper, the delivery to the master is a delivery to him, as agent of the shipper, not of the consignee ; and it is competent to the consignor, at any time before actual delivery to the consignee, to countermand it, and thus to prevent the consignee’s lien from attaching.......................Id.
29.	Under the 8th section of the prize act of June 26th, 1812, the president had authority to issue the instructions of the 28th of August 1812. The Thomas Gibbons............*421
30.	The commissions of the privateers of the
United States may be qualified and restrained by the instructions of the president.....Id.
31.	A shipment made, even after a knowledge of the war, is to be considered as having been made in consequence of the repeal of the orders in council, if made within so early a period thereafter, as would leave a reasonable presumption, that the knowledge of that repeal would produce a suspension of hostilities on the part of the United States......Id.
32.	By the mere act of illicit intercourse, the property of a citizen is not divested ipso facto; it is only liable to be condemned as enemy property, or as adhering to the enemy, if rightfully captured during the voyage... .Id. 33. The president’s instructions of 28th of Au-
299
482
INDEX.
gust 1812, were meant to protect all British merchandise on board an American ship, without any exception on account of British proprietary interest.......................Id.
34.	A vessel sailing to an enemy’s country, after knowledge of the war, and taken, bringing from that country a cargo, consisting chiefly of enemy goods, is liable to confiscation as prize of war. The St. Lawrence..............*434
35.	Suppression of papers, where it appears to have been intentional and fraudulent, and attended with other suspicious circumstances, is good cause for refusing further proof. But where the suppression appears to be owing to accident or mistake, and no other suspicious circumstances appear in the case, further proof may be allowed.........................Id.
36.	Trading with the enemy is not excused, by the necessity of obtaining funds to pay the expenses of the ship; nor by the opinion of an American minister, expressed to the master, that by undertaking the voyage, he would violate no law of the United States. The Joseph......................................*451
37.	If an American vessel be captured, on a circuitous voyage to the United States, in the former part of which voyage she has been guilty of conduct subjecting her to confiscation, although at the time of capture she is committing no illegal act, she must be condemned.......................................Id.
38.	Where the termini of a voyage are already fixed, the continuity of such voyage cannot be broken, by a voluntary deviation of the master, for the purpose of carrying on an intermediate trade................................Id.
39.	A capture as prize of war may lawfully be made, within the territorial limits of the United States, at any place below low-water mark........................................ Id.
40.	Further proof will be allowed, on the part of the captors, as to the fact of capture. The Grotius.................................... *456
ALEXANDRIA.
1. A purchaser of real estate, in Alexandria, is not personally liable for arrears of taxes assessed before his purchase. Common Council of Alexandria v. Preston.............*53
AMERICAN SHIP.
See Admiralty, 13.
APPEAL.
1. An appeal lies to this court from the sentence of the circuit court for the district of Columbia, affirming the sentence of the orphans’ court of Alexandria county, which dis
300
missed a petition to revoke the probate of a will. Carter v. Cutting..............*251
See Admiralty, 17.
ASSIGNEE OF BANKRUPT.
See Bankrupt. v
ASSIGNMENT.
1.	Upon an assignment of a plat and certificate of survey, obtained on a land-warrant, in Virginia, for 2000 acres, the assignee, who obtains a patent thereupon, in his own name, is not obliged to account with the assignor for the surplus, if upon the resurvey it appear
that the tract contains 2700 acres. Vowles
v. Craig..............................*372
AUTHORITY.
See Admiralty, 9.
BANKRUPT.
1.	Upon the death of an assignee under the bankrupt law of the United States, the right of action for a debt due to the bankrupt is vested in the executor of the assignee. Richards v. Maryland Ins. Co.............*85
2.	Quaere? Whether the commissioners of bankrupt had a right to appoint a second assignee, in case of the death of the first?, .Id.
BARRATRY.
See Charter-Party.
BLOCKADE.
See Insurance.
BRITISH LICENSE.
See Admiralty. 5, 7, 8, 9.
CAPTORS.
See Admirality, 21.
CAPTURE.
See Admiralty, 10, 37, 40.
CHARTER-PARTY.
1. Where the general owner of a ship retains the possession, command and navigation of the same, and contracts to carry a cargo, on freight, for the voyage, the charter-party is to be considered as a mere affreightment, sounding in covenant, and the freighter is not
INDEX.
483
clothed with the character or legal responsibility of ownership: but the general owner is to be considered as owner for the voyage, and if he be master of the vessel, he cannot commit barratry. Marcardier v. Chesapeake Ins. Co............................  *40
COLLECTOR.
1.	Under the 11th section of the embargo act of the 25th of April 1808, the collector was justified in detaining a vessel, by his honest opinion, that there was an intention to violate the provisions of the embargo laws. It was not necessary for him to show that his suspicion was reasonable. Crowell v. Jfc-Fadon.........................     *94
COLUMBIA.
1.	The trustee of an insolvent debtor, in the district of Columbia, represents the creditors of the insolvent, and can take advantage of a defect in a mortgage, of which the insolvent himself could not. Bank of Alexandria v. Herbert.............................*36
2.	The Maryland act of limitations of three years, is a good bar to an action of assumpsit for money had and received, brought to try the title to lands in the city of Washington, under the 5th section of the act of Maryland, of November 1791, c. 45. Beatty v. Burnes.................. t........*98
3.	Qucere ? Whether, by the Maryland act of cession of the district of Columbia to the United States, the state conveyed to the United States the vacant and unappropriated lands in the district?..........................Id.
See Appeal, 1.
COMMISSION.
See Admiralty, 30.
CONFISCATION.
See Admiralty, 2, 10.
CONSIGNEE.
See Admiralty, 12: Joint-Owners.
CONSIGNMENT.
See Admiralty, 12, 18, 21: Joint-Owners, 14, 28.
CONTINUITY OF VOYAGE.
See Adj'Iralty, 38.
CONVEYANCE.
1.	Under the land-law of Virginia, the whole legal estate and seisin of the commonwealth pass to the patentee, upon the issuing of his patent. Greeny. Liter........*232
2.	A conveyance of wild or vacant lands gives a constructive seisin thereof, in deed, to the grantee, and entitles him to all the legal remedies incident to the estate...Id.
3.	Under a conveyance, taking effect under the statute of uses, the bargainee has a complete seisin in deed, without actual entry or livery of seisin.........................Id.
CREDITORS.
See Columbia, 1.
DEBTOR.
See Insolvent.
DEBTS.
See Lands, 1.
DEMURRER.
1. A special plea, which amounts to the general issue, is bad, upon special demurrer. Van Hess v. Forrest......................*31
DEPOSITION.
See Evidence.
DEVISE.
See Land, 1.
DOMICIL.
See Admiralty, 11,17, 22.
DUTIES.
See Admiralty, 25.
EMBARGO.
See Collector.
ENEMY.
See Admiralty, 4-18, 20-4, 27-37,39,40.
EQUITY.
1. If the case be clear, a court of equity will interpose to quiet the title. Alexander v. Pendleton.. ,.........................*462
See Purchaser, 2, 3: Specific Performance.
301
484
INDEX.
EVIDENCE.
1. It is a fatal objection to a deposition, taken under the 30th section of the judiciary act of 1789, that it was opened out of court. Beale v. Thompson..................•........... *70
EXCHANGE.
See Insurance.
EXECUTOR.
1.	If a judgment be rendered against one, as executor, who is not executor, it does not bind the estate of the testator; and an execution upon such a judgment cannot legally be levied upon such estate. Griffith v. Frazier...............................,........*9
2.	By the law of South Carolina, administration durante absentia executoris cannot be granted, after probate of the will and letters testamentary granted............................Id.
3.	If an executor do not cause himself to be made party to a suit brought in the lifetime, and in the name of the testator, and pending at his death, it is to be considered as a voluntary abandonment of the action, so as to exclude the executor from the benefit of the equity of the exceptions to the statute of limitations. Richards v. Maryland Ins. Co.........................................*85
See Administration : Bankrupt, I, 2.
FORFEITURE.
See Admiralty, 25, 26.
FUNDS, WITHDRAWING OF.
1. Quaere ? Whether goods purchased before the war by a citizen of the United States for the purpose of withdrawing funds from England to the United States are good prize ? The Mary.............. .......*388
See Admiralty, 5.
FURTHER PROOF.
See Admiralty, 18-20, 24.
GENERAL ISSUE.
1.	In a writ of right, the tenant cannot, in Kentucky, give in evidence, upon the general issue, any matter of abatement. Green v. Liter...................................*231
2.	Under the act of Virginia of 1786, the tenant in a writ of right may plead any special matter in bar, or give it in evidence under the general issue........................Id.
GRANT.
See Assignment : Conveyance, 1, 2, 3.
INSOLVENT.
1.	In case of insolvency, the United States are not entitled to priority of payment, unless the insolvency be a legal and known insolvency manifested by some notorious act of the debtor, pursuant to law. Prince v. Bartlett...............................*431
See Columbia, 1.
INSURANCE.
1.	Where a technical total loss is sought to be maintained, upon the mere ground of deterioration of the cargo, at an intermediate port, to a moiety of its value, all deterioration of memorandum articles must be excluded from the estimate. Therefore, in a cargo of a mixed character, no abandonment, for mere deterioration in value, during the voyage, can be valid, unless the damage on the non-mem-orandum articles exceed a moiety of the whole cargo, including the memorandum articles. Marcardier v. Chesapeake Ins. Co.,*39
2.	Where the general owner of a ship retains the possession, command and navigation of the same, and contracts to carry a cargo, on freight, for the voyage, the charter-party is to be considered as a mere affreightment, sounding in covenant, and the freighter is not clothed with the character or legal responsibility of ownership. In such case, the general owner is also owner for the voyage; and if he be the master of the vessel, he is incapable of committing barratry.......Id.
3.	When a cargo is insured by divers policies, in some of which the rate of exchange is fixed, at which the prime cost of the cargo shall be valued; in ascertaining the amount of the interest of the assured, upon settlement of those policies in which the rate of exchange is fixed, the whole cargo is to be valued at that rate of exchange, without regard to the rate of exchange by which the value may have been ascertained in the other policies. Pleasants v. Maryland Ins. Co.........*56
4.	If a policy insures against “ unlawful arrests, restraints and detainments of all kings, princes,” &c., the qualification “unlawful” extends, in its operation, as well to “ restraints and detainments” as to “arrests;” and in such case, a detainment by a force lawfully blockading a port, is not a peril insured against, by a policy containing a warranty of neutrality. McCall v. Marine Ins. Co.. .*59
5.	A policy on goods, to be safely landed at Leghorn, is discharged by landing them at the
302
INDEX.
485
Lazaretto; that being the usage of the trade.
Gracie v. Marine Ins. Co................*75
6.	Quaere ? Whether ransom can be recovered, where there is a warranty against particular average?...................................Id.
INSTRUCTIONS.
See Admiralty, 29, 30.
JOINDER IN ACTION.
See Abatement, 2-6 : Joint Merchants, 2 : Joint-Owners, 1.
JOINT MERCHANTS.
1.	A promissory note given by one member of a commercial company to another member, for the use of the company, will maintain an action at law, by the promisee, in
his own name, against the maker. Van Mess v. Forrest...............................*30
2.	If the declaration be upon a joint note, and the defendant plead that it is the separate note of one of the defendants, and was given to and accepted by the plaintiff in full satisfaction of the debt, the plea is bad, on special demurrer, because it amounts to the general issue................................  Id.
See Admiralty, 12, 13.
JOINT-OWNERS.
1. If two joint-owners of merchandise consign it to a merchant for sale, and inform him that each owns one moiety ; and if they give separate and variant instructions, each for his own moiety, one of the consignors alone may maintain a separate action against the consignee, for a violation of his separate instructions. Hall v. Leigh.................*50
See Admiralty, 12, 13.
JOURNEY’S ACCOUNTS.
1.	At common law, no action could be renewed by journey’s accounts, in case of voluntary abandonment. Richards v. Maryland Ins. Co...............................*85
JUDGMENT.
See Executor, 1.
JURISDICTION.
1.	The acts of a tribunal upon a subject not within its jurisdiction, are void. Griffith v. Frazier...............................*9
2.	The circuit courts of the United States have jurisdiction in writs of right, where the prop
erty demanded exceeds $500 in value; and if, upon the trial, the demandant recover less, he is not to be allowed his costs; but, at the discretion of the court, may be adjudged to pay costs. Green v. Liter...........*229
See Appeal, 1.
KENTUCKY.
See Writ of Right.
LANDING OF GOODS.
See Admiralty, 3.
LANDS.
1. Under the statute of Virginia respecting wills, it is necessary, in order that lands acquired after the date of the will may pass by the will, that the intention of the testator should clearly appear upon the face of the will. Smith v. Edrington.............*66
See Assignment : Columbia, 2, 3: Writ of ' Right.
LAZARETTO.
See Insurance, 5.
LEGHORN.
See Insurance, 5.
LIEN.
See Admirality, 18, 27.
LICENSE OF THE ENEMY.
See Admiralty, 5, 7, 8, 9.
LIMITATIONS.
1.	An acknowledgment of the original justice of the claim, is not sufficient to take the case out of the statute of limitations ; the acknowledgment must go to the fact that it is still due. Clement son v. Williams.....
2.	The statute of limitations is entitled to the same respect as other statutes, and ought not to be explained away...................Id.
3.	Quaere? Whether the acknowledgment by one partner, after the dissolution of the partnership, is sufficient to take a case out of the statute of limitations?............Id.
4.	If an executor do not cause himself to be made party to a suit brought by his testator in his lifetime, and pending at his death, he cannot maintain a new suit, under the equity of the exceptions in the statute
303
486
INDEX.
of .limitations. Richards v. Maryland. Ins.
Co..............................*85
5.	In Virginia, a possession of thirty years, under some circumstances, and of fifty years, under any, constitutes a title against all the world. Alexanderv. Pendleton........*469
6.	An adversary possession of fifty years, although with knowledge of a better title, is a good defence against that title....Id.
*1. A purchaser, without notice, has a right to join his adversary possession to the ostensible adversary possession of his vendor, so as to give himself the benefit of the statute of limitations........................Id.
See Columbia, 2 : Journey’s Accounts.
MARYLAND.
See Columbia, 2, 8. ’
MEMORANDUM ARTICLES.
See Insurance, 1.
MONEY HAD AND RECEIVED.
See Columbia, 2.
MORTGAGE.
See Columbia, 1.
NATURALIZATION.
See Admiralty, 17.
NON-IMPORTATION.
See Admiralty, 10.
NON-INTERCOURSE ACT.
1.	Quaere? Whether the non-intercourse act, as it regards Great Britain, was not merged in the law of war ? The Rapid.......... *164
2.	The forfeiture of goods for the violation of the non-intercourse act of March 1st, 1809, takes place upon the commission of the offence, and avoids a subsequent sale to an innocent purchaser, although there may have been a regular permit for landing the goods, and although the duties may have been paid. United States v. Bags of Coffee....... .*398
8.	Same point, as to the act of 28th June 1809, ch. 9, § 3. The Brig Mars.........*417
NON-TENURE.
See Abatement, 26.
NOTICE.
1. A purchaser with notice is protected by his vendor’s want of notice. Alexander v. Pendleton.............................*462
See Limitations, 6, 7.
ORDERS IN COUNCIL.
See Admiralty, 81.
ORDINARY.
See Administrator.
ORPHANS’ COURT.
See Appeal, 1.
PARTNERSHIP.
See Joint Merchants, 1, 2: Limitations, 8.
PATENT.
See Assignment : Conveyance, 1.
PERMIT.
See Admiralty, 1.
PLEADING.
See Abatement : Joint Merchants, 1, 2.
POLICY.
See Insurance, 8, 4, 5.
POSSESSION.
See Limitations, 5-7: Writ of Right, 9-11, 15, 17.
PRACTICE.
See Writ of Right.
PRESIDENT.
See Admiralty, 29, 80.
PRIORITY.
See Insolvent, 2.
PRIVATEERS.
See Admiralty, 23, 29, 80.
304
INDEX.
487
.	PRIZE.
See Admiralty, 2, 4-12, 14-24, 2'7-40.
• PROBATE.
See Administration : Appeal, 1: Executor, 2, 8.
PROMISSORY NOTE.
See Joint Merchants, 1, 2.
PURCHASER.
1.	A purchaser with notice is protected by his vendor’s want of notice. Alexander v. Pendleton...........................*462
2.	A purchaser without notice has a right to join his adversary possession to the ostensible adversary possession of his vendor, so as to give himself the benefit of the statute of limitations.......................Id.
See Alexandria/
RANSOM.
See Insurance, 6.
REGISTER.
See Admiralty, 13.
RELATION.
See Admiralty, 1, 25, 26.
REVENUE.
See Admiralty, 1, 25, 26.
RIGHT, WRIT OF.
See Writ op Right.
RUBLE.
See Insurance, 3.
SALVAGE.
See Admiralty, 10.
SCIRE FACIAS.
1. By the law of South Carolina, the 30-day rule is substituted for a scire facias on a judgment, in those cases only where lapse of time prevents the plaintiff from suing out execution. Griffith v. Frazier.....*10
SEISIN.
See Writ of Right, 9-11,15-17.
8 Cbanch—20
SHIP, AMERICAN.
See Admiralty, 13.
SHIPPER.
See Admiralty, 12.
SOUTH CAROLINA.
See Scire Facias.
SPECIFIC PERFORMANCE.
1.	After a lapse of seven years, the court will refuse to decree a specific performance of a contract, in the part execution of which the complainants, or those under whom they claim, have expended large sums of money, although the first default was on the part of the defendant, and although it be probable, that the failure of the defendant, in that respect, has prevented the completion of the execution of the contract on the part of the complainants ; circumstances having so changed: that neither party could derive, from the execution of the contract, all the benefits whichi were at first expected. Pratt v. Carroll. *471.
STATUTE OF USES.
See Conveyance, 3.
STOPPAGE IN TRANSITU.
See Admiralty, 14, 27, 28.
SUPPRESSION OF PAPERS;
• See Admiralty, 35.
SURPLUS LAND.
See Assignment.
SURVEY.
See Assignment.
SUSPICION.
See Collector.
TAXES.
See Alexandria.
TENURE, JOINT.
See Writ of Right, 2, 4, 5, 14.
TENURE, SOLE.
See Writ of Right, 3, 4, 5, 14.
305
488
INDEX.
TITLE.
See Limitations, 5-7.
TRADING WITH THE ENEMY.
See Admiralty, 4, 5, 7, 8, 9, 11, 12, 14-18, 20-3, 27, 28, 31-2, 34, 36-8.
TRUSTEE.
See Columbia, 1.
UNITED STATES.
See Admiralty, 23 : Insolvent, 2.
USAGE OF TRADE.
See Insurance, 5.
USES, STATUTE OF.
See Conveyance, 3.
VACANT LANDS.
See Columbia, 3: Conveyance, 1, 2, 3.
VENDEE.
See Admiralty, 25, 26 : Alexandria : Assignment: Purchaser, 2, 3.
VIRGINIA.
See Assignment:. Lands, 1: Writ of Right.
WAR.
See Admiralty, 2-12,14-18, 20-3, 27-40.
WASHINGTON CITY.
See Columbia, 2, 3.
WILD LANDS.
See Conveyance, 1, 2, 3.
WILL.
See Appeal, 1: Lands, 1.
WRIT OF RIGHT.
1.	The circuit courts of the United States have jurisdiction in writs of right, where the property demanded exceeds $500 in value; and if, upon the trial, the demandant recover less, he is not to be allowed his costs; but, at the discretion of the court, may be adjudged to pay costs. Green v. Liter.........*229
306
2.	At common law, a writ of right will not lie, except against the tenant of the freehold demanded..............................•......Id.
3.	If there be several tenants, claiming several parcels of land, by distinct titles, they cannot lawfully be joined in one writ; and if they are, they may plead in abatement............ .Id.
4.	If the demandant demand against any tenant more land than he holds, he may plead non-tenure as to the parcel not holden; but the writ will abate only as to the parcel whereof non-tenure is pleaded, and admitted or proved. ,.....•....................   .Id.
5.	Under the act of Kentucky, to amend process in chancery and common law, the party may recover, although he prove only part of the claim in his declaration; but this does not enable him to join parties in an action, who could not be joined at the common law.....................................  Id.
6.	The act of Virginia of 1786, reforming the method of proceeding in writs of right, did not vary the rights or legal predicament of the parties, as they existed at the common law. It did not, therefore, change the nature and effect of the pleadings; and notwithstanding that act, the tenant will have the full benefit of the ordinary pleas in abatement. The clause in the act which provides that the tenant, at the trial, may, on the general issue, give in evidence any matter which might have been specially pleaded, is confined to matters in bar.........................Id.
*1. Under the act of Virginia of 1786, the tenant may, at his election, plead any special matter in bar, in a writ of right, or give it in evidence, on the mise joined...............Id
8.	The act of Virginia of 1786 did not change the nature of the inquiry as to the titles of the parties to a writ of right............Id.
9.	In order to support a writ of right, it is not necessary to prove an actual entry, under title, nor actual taking of esplees: a constructive seisin in deed is sufficient.........Id.
10.	Under the land law of Virginia, the whole legal estate and seisin of the commonwealth pass to the patentee, upon the issuing of his patent...........................  •.......Id.
11.	A conveyance of wild or vacant lands, gives a constructive seisin thereof, in deed to the grantee, and attaches to him all the legal remedies incident to the estate; a fortiori, this principle applies to a patent.........Id.
12.	In Kentucky, the patent is the completion of the legal title; and it is the legal title only that can come in controversy in a writ of right.....................................Id.
13.	A better subsisting title in a third person, is no defence in a writ of right...........Id.
14.	If tenants claiming different parcels of land, by distinct titles, omit to plead that
INDEX.
489
matter by abatement, and join the mise, it is an admission that they are joint-tenants of the whole; and the verdict, if for the demandant for any parcel of the land, may be general that he hath more mere right to hold the same than the tepants; and if of any parcel for the tenants, that they have more mere right to hold the same than the demandant...................................Id.
15.	If a man enter into lands, having title, his seisin is not bounded by his actual occupancy, but is held to be co-extensive with his
title. But if a man enter, without title, his seisin is confined to his possession by metes and bounds............................Id.
16.	An entry into a parcel which is vacant, will not give seisin of a parcel which is in an adverse seisin ; but an entry into the last par-, cel, in the name of the whole, will inure as an entry into the vacant parcel.........Id.
17.	By a conveyance taking effect under the statute of uses, the bargainee has a complete seisin in deed, without actual entry or livery of seisin.......... ..................  Id.
307’ '
