The Mary & Susan — 14 U.S. 46

Majority

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(PRIZE.)

The Mary and Susan. — Richardson, Claimant.

Syllabus

Goods, the property of merchants actually domiciled .in the enemy’s .country''at the breaking out of a war, are subject to capture and.confiscátion as prize.

The fact, that the commander Of a private armed vessél was an alien . -enemy' at the time of the capture made by him, does-not invalidate such'capture.

The President’s instructions of the 28th August, 1812, prohibiting the . interruption of vessels coming from Great Britain, in consequence . of the supposed repeal of the British Orders in Council, must have been actually known to the commanders of vessels of war, at or before the seizure, in order to invalidate Captures made contrary to thé létter and spirit of the instructions.

Appeal from the Circuit Court for the district of Ñew-York. This was a claim by Mr. Richardson for a portion of the cargo of the same ship mentioned in the preceding cause, which portion was condemned in the district and circuit courts. The claimant, a native of Great Britain, and a naturalized citizen of the United Statesj was a resident merchant of Liverpool at "the breaking out of the late war, but returned to this country in the month of May, 1813, after knowledge of the capture, and pending the proceedings, in the district couyt. The capture was made on the 3d of September, 1812, within 1-8 miles of Sandy Hook, in 13 fathoms of water, where vessels are frequently passing and anchoring, and the privateer had previously spoken at sea another privateer and a pilot boat schooner from Philadelphia.

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There was also contradictory testimony as to whether the commander of the privateer had.knowledge of the president’s additional instruótions of the 26th of August, 1812, before the capture, which, as it is noticed in the opinion of the court, it is unnecessary to state. By those instructions the public and private armed vessels óf the United States were riot to. interrupt any vessels belonging, to citizens of the United States, coming froto British ports to the United States, laden with British merchandise, in consequence of the alleged repeal of the British Orders in Council, but were, on the contrary^ to give aid and assistance to the samé, in order thaf such vessels and their cargoes might be dealt with on their, airival-ris might be decided by the competent authorities. .

Stockton, for the appellant and claimant,

stated, that this was'a case oí summum jus, where , the property of a citizen, shipped without knowledge of the war, upon the repeal of the British Orders .In Council, was condemned upon the authority of the Venus,^[1] and the doctririe of domicil. There is here no question of proprietary interest, or of national character, independent of this particular transaction. But, unless the court thinks proper to review its decisions upon, the effect of commercirii domicil, the appellant is confined to' three points in support of his claim

1st. That the capture was made after the commander of the privateer had knowledge of the instructions of the 26th of August, 1812.’

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2<J. That if he had not such knowledge, condenanation cannot take plate, as' the capture was made subsequent to the -issuing ,of the instructions. .

3d. That the commander of the privateer is, and was at the time of the'capture, an alien enemy, and* consequently, his commission,.is void,

1. This-is. a'question of fact, tó be determined by the'weight.of testimony.' 2. The instructions, were certainly communicated to ’ the commander before prize' proceedings were' commenced, and it Was the duty of the qapiors to have relinquished the property, subject to the. decision of government, under the Non-ímportatión Act. Capture does, not. vest the property of the goods in the captors, .but merely authorizes them to carry in for adjudication. The Prize Act of the 26th of June, 1812, sect; 6., show? that the property is not vested, in them Until after condemnation. All laws take effect from their enactment, as to rights of properly; and'at common law, statutes take effect, by a‘fiction,, from the first day of the Session at which they are passed. The instructions, issued under the 8th section of the Prize Act, are legislative in their nature.' Captors are the mere delegates and substitutes of the sovereign ; fheir authority is derived, from him, and must be exercised in Conformity with the will of the state.^[2] The power of the president to issue these instructions,, has already been recognized by the court The rights of war and pence depend upoi the fact of the existence of á state of war and peace

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not upon the knowledge of that fact. A prize made after a declaration of war, without knowledge of its existence, is good:; and a prize made after the cessation of hostilities is bad, without regard to the circumstance of knowledge; unless, indjeed, there be a stipulation in the treaty of peace to prolong hostilities at sea.' 3. The. commission to Johnson, the commander of the privateer, is null. The President has been deceived in his grant $ for he could never have intended to commissi onate a person to commit treason against his own country. The acts of congress, during the late war, put alien enemies under restraints which are altogether opposed to the idea of thé executive being authorized to delegate to them such a power as letters of marque and reprisal import.

Hoffman, for the respondents and captors.

It is supposed that the question, as to the application of the law of domicil to this case, is at rest.

[Marshall, Ch. J. The court considers that question completely settled, and not open for argument.]

Hoffman. 1. As to the instructions.

It is admitted that the former decisions of the court make them obligatory. The instructions could, in fact, have been communicated to the. commander of the privateer previous to the capture; and they are not,-ipso facto, and -per se, revocatory of the right to. capturé,

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The instructions must either have been actually communicated, or the privateer must have been in port after they were promulgated, in order to alfect the right to capture. . Such is the spirit of the former decisions.^[3] Cruisers are not to act upon informal information at sea, as they might be deceived by their rivals and competitors; in port, knowledge must be implied, in law, from, the certainty, publicity, and notoriety of the. fact. The right of property does vest, by capture, to be subsequently consummated by condemnation; quoad, the.belligerants the right vests; the.property of the enemy is devested ap to his rights. The claimant is an enemy, pro hoc vice. 2. The affidavits to prove the commander of the privateer an alien enemy, were irregularly taken. The cause wap open, as it were, to plea and proof; but the farthei proof was confined to the communication, of the instructions; and the simplicity of the prisje proceedings forbids going out of the, limits prescribed in the order for farther proof. .

Pinkney., on the samé side.

The court will not regard the particular hardship of the case, but will only be anxious to administer the law of nations and of the land, as they are applicable to the rights of the. parties. I. Knowledge of the instructions was communicated to the captor, before the deductio infraprmsidi'a; before the prize proceedings were com-, menced-; before condemnation; but after the seizure, which vested an inchoate right in the captor. It is said, the written law prohibited him from making it;

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bat .that is .settled, and the court have éaid, the instructions were not to be.likened to statutes. They are merely directory from a superior to a person in a subordinate capacity.; and they must be received by him, or they cannot have the binding force of instructions ; they were not law until' communicated ‘ then only they rise into law. It is also said, that the capture was well made, but subsequent knowledge shall overreach and vitiate it. In every case of capturé of goods, in their transit to this country, after the repeal of the British orders in council, the Same fact must have been known before condemnation. The' instructions inhibited the capture and in terrúption of American vessels coming from: British ports; but the President could have no authority to devest rights once vested; and there is nothing iñ the instructions to prohibit bringing in for adjudication after the capture was made, nor to prohibit prize proceedings, after bringing in for adjudication. By the 4th section of the Prize Act, it is provided, “ That all captures and prizes of vessels and property, shall he forfeited, and shall accrue to the owners, officers, and crews, of the vessels by whom such captures and prizes shall be made; and, on due condemnation had, shall be distributed:,” &C.; by which an inchoate right vested on the. capture, to he consummated by condemnation. The prize law of France and Spain vests the property immediately / other Countries require bringing infra prcesidiupi and condemnation. Capture gives, everywhere,, a right to privateers, though it may not give an indefeasible right to public ships, A qualified and provisional

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propérty is vested; and it is held, both in France and England, that the crown cannot interfere to . ,. , - . . ■ . , stop prize proceedings where private"parties have an interest. Admit that no fight of property is acquired, iff no right acquired ?, Most certainly an incipient right is acquired, to be afterwards consummated ; and the instructions' cannot have the effect, retroaétivély, to defeat the right of the captors to proceed . to adjudication. The case of a treaty of peace, stated on the other side, illustrates this idea. Belief is nothing; fqet is every thing. The captor exercises a belligerant right; the treaty repeals his. commission and abrogates , his right. Suppose a capture made the day before the treaty is signed, does it .prevent his going on and perfecting his right? Certainly not; and the same is the' case with .the instructions: if they do not stand in the way oí the capture, they do not stand in the tray of condemnation. They did., not stand in the way oí capture, because they were unknown; they do not stand in the way of condemnation, because that is a mere consummation of the incipient right acquired by capture. 2. The court have no right to look beyond the President’s commission; the captor stands everywhere upon it, especially in the prize courts of the power .by whom it is issued; and there is no case where the contrary was ever maintained,

Dexter, for the appellant and claimant.

1. It is. said the .claimant must either prove that the privateer- had been in port, or that the instructions were

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actually communicated to the commander. If it were intended to make, him a wrong doer, strict „ . ° proof of knowledge might bé essential; without such proof, he would jbe excusable from paying costs and damages; but he does not thereby acquire any indefeasible right to the thing captured; and restitution must be ordered. The claimant seeks restitution only, and the first'question is, whether, the captor had knowledge of the issuing of the instructions, no matter how it came to him. 2. But supposing that he had not this knowledge before the seizure; it was communicated to the prize master while he was carrying in the ship for adjudication.. He was bound by the instructions, “ not to interrupt, but, oh the contrary, to give aid and assistance” to the ship he captured. Does the right to proceed contrary to the instructions vest at the time of boarding, or manning ? It undoubtedly vested when the ship was completely brought infra prcesidia. But the ácts done in the intermediate time between that, and the taking possession, constituted an interruption contrary to the letter and spirit of the instructions. The right acquired by the seizure was inchoate, and was sought'to be consummated after the rule of conduct prescribed by the President became known to the captor. The rule as to capture vesting the’property is various and fluctuating, in different times, and nátions. -The distinction here is, that an inchoate right may be defeated by a knowledge of the instructions subsequently communicated: but a consummated right cannot. The President’has authority, both by our municipal constitution and public law, to prose

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cute a war lawfully declared; he may exempt this or that thing from attack or capture, by land or by sea. Suppose an enterprise commenced before knowledge of an order from him countermanding it, could the blockade, , of siege, or expedition, be continued after such revocation became known ? The captor has acquired, in the present case, no private right which the instructions cannbt defeat. Government may. by compact with foreign nations, devest inchoate rights; in a treaty of peace, restitution of captures on both sides may be stipulated.^[4] 3. The order for farther .proof justifies the .’admission of testimony as to the alien enemy character of the commander. The president’s commission is, doubtless, conclusive, wherever he acts within the authority confided to him by the laws; but he cannot commission an alien enemy, whose sovereign would have a right to punish him as a traitor; and even a naturalized citizen has. no light to cruise against his native country.

delivered the opinion of the court.

it is not necessary to go into a consideration of the national character or future designs of the claimant in this case, it has been solemnly settled, and must henceforth be considered as the positive law of this court; that shipments made by merchants, actually domiciled in the .enemy’s country at the breaking out of a war, partake of. the nature of

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enemy trade, arid, as such, are subject to belligerant capture. Whatever doubts may have once been entertained on -this bench, with regard to the necessity or propriety of adopting the principle into the jurisprudence of this country, they are now either dissipated or discarded; and the character, views, aftd even the subseqiient acts of such a shipper,, cannot vary the coriclusion of law upon his claim.^[1]

f f The effect of domicil, or commercial inhabitancy, upon national character, was recognised by the Continental Court of Appeals in Prize Causes during the war of the revolution. (2 Dallas, 42. Claim of Mr. Vantelenger.) It was determined by the supreme court, during the hostilities with France, that a citizen residing in a foreign neutral country acquired the commercial privileges attached to his domicil; and was, consequently, exempt from the operation of the law of his own country suspending the intercourse with the French dominions. ( 2 Cranch, 65 . Murray v. The Charming Betsey.) The national legislature have adopted the same principle in the act of the 3d of March, 1800, applying the rule of reciprocity in cases of salvage to “ the' vessels or goods of persons permanently, residént within the territory, and under the protection, of any foreign government,” &c.; and, finally, before the case oi the Venus, the supreme court applied the same principle to the law of insurance, and held a warranty of neutrality to be satisfied by the-residence of the party as a mercharit.in a neutral country. (Livingston and Gilchrist v. The Maryland Insurance Company. February Term, 1813.) Thjs was an action on a policy ot insurance, containing a warranty that the property was-neutral. Thatwarranty was determined to be satisfied by the.emigration of the party,. a Spanish subject, to the United States, and residing the're before the breaking out of the war in 1804, between Great-Britain and Spain, the property having been captured by a British cruiser, and condemned in the prize court at Halifax as Spanish'property. A 'majority of the court were of opinion, that the insured was to be considered as a merchant of the United States, whether he carried on trade generally, or confined himself to a trade from the United States to the Spanish provinces. See, also, 1 Johns. Cas. 363 . *56 Arnold v. The United Insurance Company; 1 Caines’ Rep. 60 . Jenks v. Hallett; 2 Johns. Cas. 481 . Johnston’ v, Ludlow; 1 Caines’ Cas. in Error, 29., 2 Johns. Cas. 476 . Duguet V. Rhinelander et al. It is-much to he lamented, that we have not printed reports oí the decisions in the British supreme court of prize, as many interesting, points have been dfecided before the Lords of Appeal, of which we have no other account than occasional loose references to them. Among these is the-case of Mr. Dutilth, mentioned by Dr. Robinson in the Indian Chief, 3 Adm. Rep. 21-., which is more particularly stated by Sir John Nicholi, in a manuscript report, in. the possession of the editor, of the hearing of the case of the Harmony, Bool, before the Lords, 7th of July,. 1803. “ The case of Dutilth, also, illustrates the present. He came over to Europe, as it is stated, in 1793, about the end of July, a, time when there was a-great deal of alarm, on account of the state of commerce in Europe. He went to Holland, then not only in a stare of amity, but also of .alliance with this country; -he continued there until the French entered. During the whole time he was there,, ha was without any establishment. He had no counting house; he had no contracts nor dealings with contractors there. He employed merchants there to sell his property, paying them a commission. Upon.thje French entering into Holland he applied for advice, to know what was left for him to do under the circumstances, having remained there on account of the doubtful state of mercantile credit, which not only affected Dutch andAmerican,’butEpglish houses, who were all looking after the state of credit in that country. In 1794, when the French came there, Mr. Dutilth applied to Mr. Adarús', who advised him to stay, until he could get a passport. He continued there until the latter end of that year, and having wound up his concerns he came away. . Some part of his property was captured before he came there. That part which was taken-before he came there was restored .to him, (The Fair American, Adm. 1796,) but that part which ’was. taken while he was there ’.was condemned, and that because he was in Holland at the time of the capture.” (The Hannibal and Pomona, Lords, 1800.)

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Stress has been laid, in the argument before this court, ón the fact that Charles Johnson, the commander of the Tickler, is án alien enemy; but on this point we are unanimous that it makes- no differ

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ence in the case. Admitting that this circumstance should bear at all upon tfie. decision of the court, the utmost that could result from it would be the condemnation of his interest to the government as a droit of admiralty. The owners and crew of the Tickler are as much parti js in this court as the commander, and- his national ■ character can in nowise affect their rights. But this court can see no reason whv an alien enemy should not be commissioned as commander of a privateer. There is no positive law prohibiting it; and it has been the. universal practice of nations to employ foreigners, and even deserters, to fight their battles. Such án individual'knows his fate should he fall .into the hands of the énemy; and the. fight to1 punish in such ease is acquiesced in*by all nations. But, unrestrained ■ by positive law, we can see no reason why this governmehi should be incapacitated to delegate the exercise of the rights of war to, any individual who may command its confidence, whatever may be his national character.

The only grounds, then, on which the right of restitution can be contended for in this case, arise out of the President’s instructions of the.28th of August, 1812. On these, three points are made : 1st, That Johnson had, in fact, or ought from circumstances to be presumed to have had, notice of those instructions. 2d. If he had hot at the time of'the capture, yet, having received them before the arrival of the prize* in port, he was bound then to have discharged her. 3d. That notice of the instructions was, in fact, unnecessary, as the instructions of the President had,

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as to the conduct of privateers, all the operation of laws. '

On the-second and third of these points there exists but one opinion in this court. Although.some doubt may be entertained relative to the form or nature of the notice necessary, yet we all agree that, some notice is necessary, and that noticei 'must precede the capture. Instruction, ex vi termini, is individual. Instruction to A., independent of legal privity or identification, is hot instruction to B. Not so With law?: their power floats oh the atmosphere we breathe. Necessity, or convention, or power,- has given fthem a legal ubiquity co-ex tensive with the legislative power of the government that enacts thém. Notice here is altogether unnecessary, unless made so by the law itself. It is the sic volo, sic jubeó, of sovereign power, of which eVery individual subject to its jurisdictions?1 presumed to have notice, though time and distance stamp absurdity on the supposition. Unquestionably, the same operation might by law have been given to instructions emanating from the President; but this has not been done: on the contrary, the clause itself wbich vests the power in the executive, holds out the idea of the necessity of notice. That this notice must necessarily .precede or accompany capture we are induced to infer from this consideration. By capture the individual acquires an inchoate statutory right, an interest which can only be defeated by the supreme legislative power of the Union. Condemnátion does nothing more than ascertain that each individual case is within the Prize Act, and thus throws the individual upon his right acquired by

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belligerant capture. Should the Prize Act, in the interim, he. repealed, or its operation he suspended by the provisions of a treaty, there no longer exists a 'law to empower the courts to adjudge the prize-to the individual captor.. We can seenothiing in the objects of the law authorizing the President to issue his instructions, nor in the instructions themselves,which can support the idea, that that which was lawfully prize of war at the time-of .capture should cease to be so-upon subsequent notice'of the.instructions. Both the act itself, and the instructions, in their, plain and obvious sense, may well be construed so as to arrest the arm of hostility before it has given the blow?. But not only is there nothing either in the act or instructions to. which an ulterior operation can be given, but the policy of the country, as well as the fair claims of the prowess, perseverance, and .expenses of the individual forbid our giving an .effect either to the aet.ol the instructions which will deprive the captor of the just fruits of, his'bravery and. enterprise. The-fact of notice, then, alone’remains to be considered: and this must either be inferred'Trom circumstances, or received upon the evidence of confession. On this point, computation of time becomes material. The. capture- was made, as we collect from .the officers' and crew, op the 3d of September; but as the"nanti-' cal calculation of time commences at noon, this may mean on the morning' of the 4th of September. The additional instriictions bear date the 28th of August, and were, probably, forwarded by the mail-' of the 29th.. It cannot, therefore, be supposed that they were püblishéd in Philadelphia' before the 31st

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of August, nor in New-York before the 2dj at any rate, not before the 1st of September. This certainly leaves time enough for the information to have been communicated from New-York, but renders it impossible, that it could have been received either from the Eagle or the pilot boat, as they were both spoken off Charleston, and the latter was seven days out; whereas the Tickler left St. Mary’s, in Georgia, on the 24th..; Whether such' information was not in fact communicated off New-York, is a point on which the evidence would leave us little room for a contrariety of opinion, weré it not for the loss of the logbook and journal. For this circumstance, taken in coni unction with the evidence of confession, some of the court are inclined to entertain an unfavourable idea of the captor’s cause. But the majority are of opinion, that they cannot attach so much importance to it. The evidence of Paine, Ferris, and Warren, all officers of the privateer, and, at the tíme of testifying, devested of all interest in-the capture, positively negatives the only fact from which notice could be implied, to wit, the speaking of any vessel beside the Eagle and the pilot boat, previous to the capture of the Mary and Susan. And this, wé think, is supported by. probability, when it is considered how very few vessels at that time could venture to leave our pbrts; that there is no probability the Tickler could have ventured to lie off and on the port of New-York any length of time; and that, from her leaving the port of St. Mary’s to. her arrival at New-York, there elapsed no more than the ordinary time of performing that voyage. In addition to which considera

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tions, we cannot but think, that a copy of the jomnal of this voyage was, as it Ought to have been, deposited in the custom-house; and this circumstance, whilst it was calculated to make the captor less careful in preserving the original enabled the claimant to avail himself of every advantage which' could have been derived, from the original. On the evidence of confession, we are not inclined to enter into the consideration of the depositions, intended on the one hand to support, and on the other to impugn, the credibility of Waldron and Garnsey. Nothing ban be more painful than the necessity of entering upon such investigations; nothing more unsatisfactory than to found a legal decision as to the credibility Of a witness upon oral testimony, unsupported by 'the eviÚentia ret. In this case we are induced to conclude that these witnesses misunderstood Johnson; that the knowledge of which the latter spoke, was that acquired subsequent to the capture; that it could not have related to any other knowledge we think incontestible, from the single consideration' that the evidence in the case proves it to have, been inconsistent with the fact. It was not possible, under the circumstances of the case, that such knowledge could have been communicated for want, of the means of communication, and that it was not, is positively sworn to by three witnesses whose testimony, stands wholly unimpeached.

Sentence of the circuit court affirmed with costs.

Footnotes

c c 2 Azuni, part 2. c. 4. art, 1. sect. 9. 11