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United States Supreme Court

February 20, 1815


The opinion of the court was delivered by: Story, J. The case of the Rapid differs from this. She went from this country to that of the enemy after knowledge of the war.

Absent. TODD, J.

APPEAL from the sentence of the Circuit Court for the

district of Rhode Island, condemning the cargo of the Mary, as prize to the privateer Paul Jones.

This cause was argued at last term by STOCKTON and PINKNEY for the Claimants, and J. WOODWARD for the (ante, vol. 8, p. 388,) when leave was given by this Court, for further proof, by affidavits, on the following points.

1. As to the citizenship of N. J. Visscher.

2. As to the names of the other heirs of general Fisher, who are interested in the property; the place of their residence, and their national character.

3. As to the time when N. J. Visscher, went to England; the object he had in view in going thither; how long he resided there; when the cargo was purchased; and when he returned to the United States.

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 president's instruction of the 28th of August, 1812, had been delivered to the captain, or had come to his knowledge, 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.

The captors also had leave to make further proof as to the same points.

The further proof now offered consisted of the affidavits of the Claimant, N. J. Visscher, Jacob S. Pruyn, and David Gelston, collector of the customs for the port of New York. The affidavit of N. J. Visscher stated, in substance, that he, and sundry other persons, (whose names and places of residence are mentioned, and who are all citizens and residents of the United States,) are the sole heirs at law and personal representatives of the late general Garret Fisher. who died in London intestate. That he, in behalf of himself and as agent for the other heirs, went to England, (having first obtained leave from the war department, he being a military officer in the service of the United States,) in consequence of an agreement between him and the other heirs, dated June 19th, 1811, (which original agreement is annexed to the affidavit.) He arrived, in England on the 22d of August, 1811, and obtained letters of administration on the estate of general Fisher, collected the effects, converted them into cash, paid the debts, and was prepared to remit the balance to the United States long before the war was known in England; and was waiting for a favorable opportunity of investing the same in property that could be advantageously sent to the United States, the balance of exchange being then greatly against him, and not being able to invest the whole in United States' stock. That as soon as the revocation of the English orders in council took place, supposing that it would be followed by the repeal of the non-importation law of the United States, he gave orders for the purchase of British goods to nearly the whole amount of the balance remaining in his hands, which purchase, including the goods now in question, was made by Harman Visger, his agent, before the war was known in England, who caused them to be sent to Bristol to be shipped, where they arrived in July and August; whence they were shipped early in August on board the American brig Mary. That the goods were the sole property of the Claimant, for himself and the other heirs of general Fisher. That he left England as soon as his business was settled, and arrived in the United States, on the 19th of October, 1812.

The affidavit of Mr. Pruyn confirms that of Mr. Visscher, as to the residence and citizenship of the Claimant and the others interested in the cargo.

The affidavit of Mr. Gelston states the fact that a copy of the president's instruction of the 28th of August, 1812, was given to the commander of the Paul Jones, before she sailed on the cruize in which she captured the Mary.

No further proof was offered on the part of the Captors.

STOCTON, for the Claimant,

After reading the further proof offered by the Claimant, said he should rest the case, in the opening, upon the argument formerly made.

J. WOODWARD, for the Captors,

Was directed by the Court to show wherein this case differs from that of the Thomas Gibbons, decided at last term, upon the effect of the president's instruction of the 28th of August, 1812.

WOODWARD. The Thomas Gibbons was an American vessel and sailed so early as to be presumed to have sailed in consequence of the repeal of the orders in council. But we contend that the Mary, sailing from Ireland, under a British license, as late as April, 1813, (which license was obtained for the vessel and cargo, by a British subject in his own name,) and laden with British goods, must be taken to be a British vessel, and not as sailing in consequence of the repeal of the British orders in council, within the meaning of the instruction of the 28th of August. But the fact that the vessel has not been claimed, is clear proof that she was British.

The voyage from Ireland in April, 1813, as far as respects those instructions, is a voyage de novo, whatever it may be considered to be upon more general principles of law.

The intent of these instructions was to protect American vessels and their cargoes, sailing from England under the impression that the repeal of the orders in council would have been followed by a repeal of our non-importation law, and a cessation of hostilities; but not to protect vessels sailing with a full knowledge that those consequences had not, and probably would not follow the repeal of the orders in council. At the time the Mary sailed all such expectations had ceased. The instructions are derogatory to the rights of war, and the party wishing to protect himself thereby must bring himself strictly within their meaning and intent. The vessel and cargo were safe at Waterford, and the political relation between the two countries was then well understood, there was no necessity of her sailing from thence; she knew that the war was raging with increased violence.

The new license although it refers to the old one bears a very different character. The old one was innocent because it was not then the license of a belligerent, and did not give a belligerent character to what it protected; but the new had all the characters of a belligerent license, notwithstanding its connexion with the old. When she sailed, she knew, or might have known, and taken warning by the act of congress of the 2d of January, 1813, which extends the protect on of the instructions only to vessels sailing before the 15th of September, 1812. The instructions merge in, or are controled by the provisions of that act. A vessel could not be protected by the instructions unless she sailed not only in consequence of the repeal of the orders in council, but before the 15th of September, 1812.

The necessity for a new license shews that it was a new voyage. She was obliged to take new papers and a new clearance. But if a voyage be legal in its commencement, and before it be finished, become illegal, and the party has an opportunity to put an end to it, he is bound to do so. The prosecution of the voyage, after a knowledge of its illegality, and after an opportunity given to abandon it, must be considered as placing the party in delicto.

If this property was purchased after knowledge of the war had reached England, it is liable to condemnation. The invoices are dated the 13th of August, and the war was known in Liverpool on the 18th of July. By the order for further proof the Claimant is called upon to prove the time when the cargo was purchased. No such proof is offered. The affidavit of Mr. Visscher, if it could be considered as proof, does not state the time, but merely states in general terms that the purchase was made before the war was known in England. This is not such proof as the order requires. The proof of the fact if it exist, is in England, why has it not been obtained? It is the most material fact in the case. The voluntary affidavit of the party himself, who is so deeply interested in the cause cannot be evidence. At the last term the Court wanted further evidence of that fact. They have not obtained it, nor is it shown that it was out of the power of the Claimant to produce it. It was in his power. But it was not in our power to produce evidence of the contrary. It is not probable that the witnesses would have consented to a voluntary examination on our part and we had no means to compel them to testify. We rely upon this defect of evidence.

EMMETT, on the same side.

The condemnation of the vessel, is final and conclusive, there being no appeal. Part of the cargo is in the same condition: 160 bundles of steel, worth about 1000 dollars, are unclaimed and of course no appeal was taken and they belong to the Libellants. N. J. Visscher filed two claims, and therefore had time to rectify the mistake if any were made.

It is clear therefore that there were articles on board which did not belong to N. J. Visscher, and that he intended to disclaim certain parts of the cargo.

This case is not within the reason of the decision in the case of the Thomas Gibbons. The intention of the instructions was to exempt the property from capture, not to give it an entire immunity. This could be done only by the legislative power. The object of the instructions was to suspend the prize act in this particular until the legislature could interfere. In the case of the Thomas Gibbons, this Court, in delivering its opinion has connected the instructions with the act of congress of 2d January, 1813, and seems to hold out the idea that the time of sailing of a vessel must be limited to the 15th of September, in order to be protected by the instructions. The act of congress had made that definite which the instructions had left undefined. If the instructions and the act are not thus to be connected and construed together, there is no time limited, and a vessel may at any period of the war be protected by those instructions.

Does this vessel come within those instructions? Is she a vessel owned by citizens of the United States? She has been condemned as enemy's property. From that sentence there has been no appeal. It is conclusive.

But although that objection seems conclusive, yet there is a still stronger ground of condemnation. She did not sail from Waterford until nine months after war was declared. Here was ample time for countermanding her voyage after knowing that the repeal of the orders in council would not produce a cessation of hostilities. Can such a case be protected by the instructions.

The further proof furnishes irresistable evidence of trading with the enemy. The order for further proof calls for evidence of the national character of Visscher, and those interested with him in the claim, and of the time when the goods were purchased, as well as with regard to the question whether the instructions were on board the privateer. It is clear therefore that the Court were not then satisfied as to any of those points.

No further competent evidence has been produced as to the time of purchase. The Court will not receive as proof the affidavit of the interested party himself, when it is clear that better evidence must have been in his power. Why did he not produce the affidavit of his agent who made the purchases, or the bills of parcels, which he must have in his possession, by which to settle with the other heirs. These bills of parcels also would have shown whether other parts of the cargo as well as the 160 bundles of steel, did not belong to Harman Visger.

But this was a clear case of trading. Visscher was only to collect and remit the proceeds of the estate. Instead of which he goes to trading with it for his own benefit, not that of the heirs. By undertaking to ship goods he took the risk on himself, and if lost, he must account to the other heirs.

It is immaterial, however, whether the goods were purchased before or after knowledge of the war. 8 T. R. 556, the case of St. Philip cited in Potts & Bell, from the MS. notes of sir E. Simpson.

LIVINGSTON, J. Was not this point settled in the case of the Rapid?

EMMETT, I think it was; but lest it should not have been, I refer the Court to the case of the Juffrow Louisa Margaretha. 1 Rob. 170, (Amer. Ed.) cited in the case of the Hoop. 1 Rob. 177, The Eemgheid.–1 Rob. 178, The Fortuna.–1 Rob. 181, sir William Scott's judgment in the Hoop, where he does not allow an excuse either of convenience or necessity. A license from the government of the United States ought to have been obtained for the Mary, or the voyage abandoned. 1 Rob. 180, The William.

A distinction is attempted to be taken between this case and that of the Rapid. It is said this vessel was in motion.

If a vessel has been in motion so far that there is no opportunity of countermanding the voyage, this distinction might be relied upon. But here there was time for countermanding. Upon this point see again the case of the Fortuna. When was the Mary in motion? War was published in London on the 26th of July. This vessel did not begin to load till August, and did not sail from Bristol till three weeks after knowledge of the war. N. J. Visscher himself was present and might have countermanded the voyage, which is a circumstance of great importance. 5 Rob. 142, (Eng. Ed.) Juffrow Catharina.

EMMETT. As to the Rapid, the condemnation was owing to the presence of Harrison, who might have countermanded the voyage, but did not. Whether the party be in the country at the time of the breaking out of the war, or goes there afterward is immaterial; in each case he is equally bound to countermand the voyage. The present case therefore is precisely that of the Rapid.

But N. J. Visscher was in England long after the Mary put into Waterford. He did not leave England till the 7th of September; the Mary arrived at Waterford in August. He knew that the vessel must remain there till the spring, and that she could not arrive in the United States until nearly a year after the declaration of war. Why did he not apply to the United States for a license?

The sailing from Waterford was a new voyage. We are to consider the transaction, not in a commercial point of view, but as it is affected by public policy and national law. To every belligerented purpose it was a voyage de novo. It is not protected by the act of congress of 2d January, 1813. That act requires that the vessel should have sailed before the 15th of September, 1812. and should have sailed in consequence of the repeal of the orders in council. The act has no prospective view. Visscher knew that it did not protect this vessel. He traded at his peril. 1 Rob. 181, The Hoop.

But if, contrary to expectations, this property should be restored we trust it will be with costs. There was no proof of property on board. She was found sailing with a British license dated long after the war was known. She had sailed long after the 15th of September, and did not appear by any documents on board to be within the president's instructions of the 28th of August, 1812. It is not usual to give costs after an order for further proof. If the papers withheld, had been produced it is probable a great deal more of the property would be found to belong to Harman Visger.

PINKNEY, in reply.

It is said that Mr. Visscher has been trading for his own benefit, upon the funds he received. There is no foundation for such an assertion. The letters of Harman Visger, and all the documents show that the goods were purchased and shipped for the joint benefit of all the heirs. He did the best for the interest of all concerned, according to his judgment, and agreeably to the agreement of the parties, which contemplates and provides for the case of his being obliged to remit goods, and binds him to cause them to be insured.

Two questions arise in this case,

1. Was the Mary the property of an American citizen?2. If so, was she, when captured, sailing in consequence of the repeal of the British orders in council?

1. Was the Mary the property of an American citizen?

All the documentary evidence shews that she was?

But it is contended that she was the property of one Smith a Scotsman, and this assertion depends upon the evidence of the cook, who says be believed it because Smith ordered the men about. But it appears that this cook was shipped just as the vessel sailed.

It is said also that the ship, not having been claimed, was condemned, and no appeal has been prayed, which shows conclusively that she was British property.

The reason why she was not claimed appears in the evidence. She was hypothecated for more than she was worth. If lost by capture the owner is not personally liable, but if he should claim, and the vessel should be restored, he would be liable for the amount of the bottomry bond. Visscher, who held the bond, could not claim in his own name, for it has been decided that such a lien on the ship will not support a claim, and he could not use the name of the owner without his consent, which he would certainly not give to impose a liability on himself. It was his interest to make it a total loss. A sentence of condemnation founded upon the want of claim accounted for in such a manner, cannot surely be conclusive evidence that the ship was not bona fide owned by an American citizen.

2. Was she sailing in consequence of the repeal of the orders in council?

This voyage unquestionably had its inception in consequence of that repeal. We think this case falls precisely within the principles decided in that of the Thomas Gibbons. But it is said that the deviation to Waterford makes it a new voyage. That this was a continuation of the voyage at the common law, is admitted; but not in a Court of prize. Why should there, in this respect, be a difference between the law merchant and the law of nations? We contend that the law of nations, being more enlarged, is less rigid than the law merchant.

But as to prize law, the English Courts of prize always connect voyages of this kind. Continuity is the favorite doctrine of a prize Court. The British Courts of prize, on the subject of contraband of war, seem to have been enamored of this doctrine of continuity; they condemn vessels returning with the proceeds of contraband; thereby making the homeward voyage the outward voyage, and the proceeds of contraband the contraband itself.

But it is said that this vessel was bound on an illegal voyage, and therefore cannot plead distreas. She acted on the belief that the repeal of the orders in council would produce peace, as all others did, and if she was in error, communis error facit jus.

The president's instructions and the act of congress go on the ground that this error was excusable.

This vessel is within the benefit of the maxim actus Dei nemini facit injuriam. She would certainly have been protected by that maxim, if she had been all that time driven about the Atlantic by storms and contrary winds; and her case is still the same; she was still in itin ere. It is said that the instructions where a substitute for a legislative act, and that the act of congress has superceded the instructions. This we do not admit. They may both stand together–their objects are different.

But we are referred to the policy of the instructions and it is said that this vessel was not within the policy. The adventure was undertaken in the belief that the war would cease; the going to Waterford and the dentention there were necessary to the prosecution of the voyage.

But it is said there was locus penitentioe. That Visscher knew how long the vessel would be detained there, and therefore ought to have abandoned the voyage. There is no evidence of that fact if it were material. But if he did know it, he knew also that the voyage was innocent in its inception, and that its continuity could not be broken by this necessary deviation.

As to his obtaining a second British license, it was necessary; he could not leave Waterford without it. It was not a voluntary act. He acted under a vis major. The second license was only a renewal of the first; if he had authority to go at all, he might lawfully use the means. After his return to the United States, he did not apply for an American license because he was daily expecting the arrival of the Mary; besides he knew that she was protected by the president's instructions.

The opposite argument is raised upon the supposition that she must not only commence her voyage under an impression that war had ceased, but must continue under the same impression during the whole voyage. Must she return, if, in the midst of the Atlantic, she is undeceived?

The voyage was commenced under a belief that war had ceased, and was continued under the impression that she would be protected by the instructions of the president. Although there was war between the United States and Great Britain, yet there was peace between the United States and this adventure. This case, in principle, is exactly that of the Thomas Gibbons.

But we are accused of not having produced sufficient further proof of the proprietary interest in the cargo and the time of purchase. They say the only evidence is the affidavit of N. J. Visscher–testis in propria causa. Such testimony is, and always must be admitted in prize causes. N. J. Visscher is a man of fair character. But his testimony was matter of supererogation. Every document and paper showed before that the property was American.

But they say that as we undertook to furnish further proof we ought to have done so–that we were in possession of the bills of parcels and ought to have produced them. The fact is not so, nor can it, in the nature of commercial transactions be so. We had the invoices, but not the bills of a parcels, they were the vouchers of Harman Visger, who made the purchases; they remained in England and it could not be expected that we should send there for them. N. J. Visscher has produced his test affidavit, which is all that could be expected.

But there is an objection to the omission to claim 160 bundles of steel. By a comparison of the ships papers with the claim it will be found that he meant to claim, and did claim, the whole of the cargo. The omission of this item was by mistake.

The rule that every trading with an enemy subjects to confiscation, will not, I trust, be sanctioned by this Court.

All the essential parts of this transaction took place in peace, or in imagined peace. The rule of trading with an enemy is not absolutely inexorable. See the case of the Madonna del Gracie, and the principles stated by sir W. Scott in the Hoop. The danger of treasonable intercourse is the ground of the rule. But here was no such danger. Another ground of condemnation of goods is said to be their adherence to the enemy. But here, instead of adhering to the enemy, the goods were withdrawn by the earliest opportunity. It was certainly for the interest of the United States, that the goods should be withdrawn from the power of the enemy. But it is said that it was contrary to his allegiance. Is it contrary to his allegiance to do that, the forbearance of which would be for the advantage of the enemy? Why should we give a new face of terror to the principles of war?

The case of the Rapid was essentially different. There was opportunity for treasonable intercourse. She sailed from this country after the war was declared. Let not the rule be made an iron rule. It has been carried far enough. There is not a shadow of authority for condemnation in a case like this, where a mere remittance of funds acquired before the war was intended to he made at the first knowledge of the war.

All the cases cited against us, are to be found in the case of the Hoop, except one referred to in Potts and Bell. Not one of them includes the present case. 1. The Ringende Jacob, was a clear case of mercantile trading in open war. 2. The Lady Jane. This case is relied upon because the cargo was the produce of goods sent to Spain before the war. But the commercial adventure was planned and concocted during the war. 3. The Deergarden of Stockholm, was a case of trade with the memy wholly originating during war. 4. The Elizabeth of Ostend, was another clear case of trading during war. 5. The Juffrouw Louisa Margaretha. According to the statement of this case in Bosanquent and Puller (Escott's case) part of the goods were purchased long after the war had broken out, and the adventure was projected in the heat of the war. One part of the cargo was considered as infected by the other. 6. The St. Louis or El Allessandro. In that case the groods were shipped in the midst of the war, and were bound to the port of an enemy. 7. In the case of the Compte de Wohronzoff, the goods were shipped long after the existence and knowledge of the war, and in the regular prosecution of trade. 8. So in the Expedite von Rotterdam, the exportation of goods was from the enemies country in the midst of the war. 9. In the case of the Bella Guidita, the voyage was direct to an enemy country with provisions. 10. In the Eenigheid, the voyage was to, not from, the enemy's country, and was after the knowledge of the war. In that case there might be treasonable intercourse, but here there could be none. 11. The Fortuna, was the case of a voyage to the enemy's country, which might have been countermanded after knowledge of the war. 12. In the case of the Freeden, the voyage was also to, an enemy's port after notice of the war. 13. In the William, which is a case much relied on by the opposite counsel, it appears in 8, T. R. 560 that the sugars in question were received by the British merchant's agent from the enemy, after the war broke out, and were received in the course of a general trade, which is the feature that distinguishes this case of the Mary from all that have been cited.

The Claimants in those cases were general merchants in the regular prosecution of their trade; but ours is a single case of accidental remittance of funds, constituting no part of a general trade. To this long list of cases sir John Nicholl in Potts and Bell, 8, T. R. 556, has added one more–The St. Philip, in 1747, where the lords refused evidence that the goods were bought before the war, being of opinion that the effects of British subjects, taken trading with the enemy, are good prize. This is certainly a hard case. It is very briefly stated; none of the particular circumstances being mentioned. It does not appear how long after the breaking out of the war the goods were shipped, which would be a very important consideration in the innocence or gult of the transaction.

This Court it is presumed will not push the law of war to its utmost extent, and certainly not farther than it has been extended by the English Courts.

As to costs. If the Mary was within the president's instructions, the captors are not entitled to costs and expenses.

STORY, J. Whe further proof has been ordered, are not costs and expenses to be allowed of course?

PINKNEY, I think not.

February 25th. Absent. TODD, J.

MARSHALL, Ch. J. delivered the opinion of the Court as follows:

Nanning J. Visscher, an American citizen, administrator of general Garret Fisher, deceased, went to Great Britain in the year 1811, for the purpose of collecting the estate of the said general Garret Fisher in that country, and remitting it to the United States for those who were entitled to it by law. Immediately after the repeal of the orders in council, the said Nanning J. Visscher invested a considerable portion of the funds of the said estate in British merchandize, and engaged the bring Mary, a vessel having an American register, to convey it to the United States. The Mary was engaged at Whoolwich and came round to Bristol, where her cargo was procured. She began to take it on board on the 3d of August, 1812; and on the 15th of August, having completed her lading, she sailed from the port of Bristol for the United States, having on board a British license dated on the 8th of July, 1812. While prosecuting her voyage she encountered such severe weather, and received such damage, as to be under the necessity, in order to avoid the danger of foundering at sea, to put into the port of Waterford, in Ireland, for the purpose of being repaired. While lying in Waterford and undergoing repairs, she was also detained by a general embargo, imposed on all American vessels in the ports of Great Britain. The Mary, being released by the high Court of admiralty, and her repairs being completed, her license was renewed on the 27th of March, 1813, and she sailed from Waterford, for Newport, in Rhode Island, on the 7th of the following month. On the 22d day of April she was captured by the American privateer Paul Jones, captain Taylor, and brought into Newport, Rhode Island, where the vessel and cargo were libelled as enemy property. No claim being put in for the vessel, she was condemned; but the cargo, which was claimed by Nanning J. Visscher, for himself and the other heirs of general Fisher, was restored. From this sentence the captors appealed. In the Circuit Court the sentence of the District Court was reversed and the cargo was condemned. From this sentence of condemnation an appeal was taken to this Court, and the case was argued at the last term.

The president's instructions of the 28th of August, 1812, were then for the first time relied on, but it was not admitted on the part of the captors, that these instructions were known to captain Taylor. For the ascertainment of this important fact, it was necessary to admit further proof.

It being uncertain how this fact would appear, the Court also directed further proof on other points which were involved in some degree of doubt.

It is now proved incontestibly that the instructions of the 28th of August were on board the Paul Jones at the time of the capture. These additional instructions direct 'the public and private armed vessels of the United States not to intercept any vessels belonging to citizens of the United States, coming from British ports to the United States, laden with British merchandize, in consequence of the alleged repeal of the British orders in council.'

The effect and operation of these instructions were settled in the case of the Thomas Gibbons. The only enquiry to be made in this case is, do they apply to the Mary? To sustain their application it must appear,

1. That the Mary belonged, at the time of capture, to a citizen of the United States.

2. That she was coming from a British port to the United States, laden with British merchandize, in consequence of the alleged repeal of the British orders in council.

1. Was the Mary the property of an American citizen?

She carried an American register, which represented her as the property of James B. Kennedy, a citizen of the United States.

She sailed from Charleston, in South Carolina, as an American vessel, commanded by captain Stafford, a native American citizen, who continued to command her until her capture, and who always supposed her to be the property of Mr. Kennedy. Her first license, which was granted before intelligence of the declaration of war had reached England, was granted to her as an American vessel; and in the renewed license she was still considered as an American vessel.

In opposition of this testimony is the deposition of one of the mariners, who supposes one Smith, a British subject, to be a part owner of the Mary, because the captain so informed him, and because Smith ordered the people about as much as Mr. Kennedy or the captain.

So much of this deposition as refers to the information of the captain, is not very probable; and if true, must either discredit the captain's testimony, or be considered as a communication made for some particular purpose while the vessel was in a British port. That part of it which states Smith to have ordered the people about as much as Mr. Kennedy, is not very intelligible, since Mr. Kennedy, the owner of the Mary, does not appear to have been on board the vessel, or at Bristol, or at Waterford.

Had a claim been put in for the Mary, this testimony, opposed to the proof furnished by the register and the deposition of the captain, would have been light indeed.

But no claim was filed for the Mary, and she was consequently, according to the course of the Court of admiralty, condemned as enemy property.

This sentence is now relied on by the captors as establishing the fact. The argument has been pressed with great earnestness, and is certainly entitled to serious consideration.

The conclusive effect which the captors would give to this sentence is founded in part on reasoning which is technical, and in part on the operation which the fact itself ought to have on the human mind in producing a conviction that the claim was not filed because it could not be sustained.

A sentence of a Court of admiralty is said not only to bind the subject matter on which it is pronounced, but to prove conclusively the facts which it asserts. This principle has been maintained in the Courts of England, partionlarly as applying to cases of insurance, and has been adopted by this Court in the case of Croudson and others v. Leonard. Its application to the case at bar will be considered.

The Mary was not condemned by the sentence of a foreign Court of admiralty in a case prior to and distinct from that in which the cargo was libelled. She was comprehended in the same libel with the cargo.

The whole subject formed but one cause, and the whole came on together before the same judge. By the rules of the Court the condemnation of the vessel was inevitable; not because in fact she was British property, but because the fact was charged and was not repelled by the owner, he having failed to appear and to put in his claim. The judge could not close his eyes on this circumstance; nor could he, in common justice, subject the cargo, which was claimed according to the course of the Court, to the liabilities incurred by being imported in a hostile bottom. In the same cause, a fact, not controverted by one party, who does not appear, and therefore as to him taken for confessed, ought not, on that implied admission, to be brought to hear upon another who does appear, does controvert, and does disprove it. The owners of the cargo had no control over the owner of the vessel. Visscher could not force Kennedy to file a claim; nor could Visscher file a claim for him.

The evidence that the vessel was American property could not be looked into so far as respected the rights of Kennedy, because he was in contumacy; but Visscher was not in contumacy. He was not culpable for, and therefore ought not to suffer for, the contumacy of Kennedy. That contumacy, in reason and in justice, ought not to have prevented the District Court from looking into the testimony concerning proprietary interest in the vessel, so far as the rights of other Claimants depended on that interest. Nor is the Court informed of a legal principle which should have restrained the district judge from looking into this testimony. If we reason from analogy we find no principle adopted by the Courts of law or equity, which in its application to Courts of admiralty, would seem to subject one Claimant to injury from the contumacy of another.

A judgment against one Defendant for the want of a plea, or a decree against one Defendant for want of an answer, does not prevent any other Defendant from contesting, so far as respects himself, the very fact which is admitted by the absent party.

No reason is perceived why a different rule should prevail in a Court of admiralty, nor is the Court informed of any case in which a different rule has been established.

If the District Court was not precluded by the nonclaim of the owner of the vessel from examining the fact of ownership, so far as that fact could affect the cargo, it will not be contended that an Appellate Court may not likewise examine it.

This case is to be distinguished from those which have been decided on policies of insurance, not only by the circumstance that the cause respecting the vessel and the cargo came on at the same time before the same Court, but by other differences in reason and in law, which appear to be essential.

The decisions of a Court of exclusive jurisdiction are necessarily conclusive on all other Courts, because the subject matter is not examinable in them. With respect to itself no reason is perceived for yielding to them a further conclusiveness than is allowed to the judgments and decrees of Courts of common law and equity. They bind the subject matter as between parties and privies.

The whole world, it is said, are parties in an admiralty cause; and, therefore, the whole world is bound by the decision. The reason on which this dictum stands will determine its extent. Every person may make himself a party, and appeal from the sentence; but notice of the controversy is necessary in order to become a party, and it is a principle of natural justice, of universal obligation, that before the rights of an individual be bound by a judicial sentence, he shall have notice, either actual or implied, of the proceedings against him. Where these proceedings are against the person, notice is served personally, or by publication; where they are in rem, notice is served upon the thing itself. This is necessarily notice to all those who have any interest in the thing, and is reasonable because it is necessary, and because it is the part of common prudence for all those who have any interest in it, to guard that interest by persons who are in a situation to protect it. Every person, therefore, who could assert any title to the Mary, has constructive notice of her seizure, and may fairly be considered as a party to the libel. But those who have no interest in the vessel which could be asserted in the Court of admiralty, have no notice of her seizure, and can, on no principle of justice or reason, be considered as parties in the cause so far as respects the vessel. When such person is brought before a Court in which the fact is examinable, no sufficient reason is perceived for precluding him from re-examining it. The judgment of a Court of common law, or the decree of a Court of equity, would, under such circumstances, be re-examinable in a Court of common law, or a Court of equity; and no reason is discerned why the sentence of a Court of admiralty, under the same circumstances, should not be re-examinable in a Court of admiralty.

This reasoning is not at variance with the decision that the sentence of a foreign Court of admiralty, condemning a vessel or cargo as enemy property, is conclusive in an action against the underwriters on a policy in which the property is warranted to be neutral.

It is not at variance with that decision, because the question of prize is one of which Courts of law have no direct cognizance, and because the owners of the vessel and cargo were parties to the libel against them.

In the case of Croudson and al. v. Leonard, two judges expressed their opinions. Those who were silent, but who concurred in the opinion of the Court, undoubtedly acquiesced in the reasons assigned by those judges. On the conclusiveness of a foreign sentence, judge Johnson said, 'The doctrine appears to me to rest on three very obvious considerations: the propriety of leaving the cognizance of prize questions exclusively to Courts of prize jurisdiction; the very great inconvenience, amounting nearly to an impossibility, of fully investigating such cases in a Court of common law; and the impropriety of revising the decisions of the maritime Courts of other nations, whose jurisdiction is co-ordinate throughout the world.'

These reasons undoubtedly support the opinion founded on them; but it will be readily perceived that they would not apply to the case before the Court.

After stating the conclusiveness of the sentence of Courts of exclusive jurisdiction, judge Washington said, 'This rule, when applied to the sentences of Courts of admiralty, whether foreign or domestic, produces the doctrine which I am now considering, upon the ground that all the world are parties in an admiralty cause. The proceedings are in rem; but any person having an interest in the property may interpose a claim, or may prosecute an appeal from the sentence.

The insured is emphatically a party, and in every instance has an opportunity to controvert the alleged grounds of condemnation, by proving, if he can, the neutrality of the property. The master is his immediate agent, and he is also bound to act for the benefit of all concerned; so that in this respect he also represents the insurer.'

The very foundation of this opinion that the insured is bound by the sentence of condemnation is, that he was in law a party to the suit, and had a full opportunity to assert his rights. This decision cannot be applicable to one in which the person to be affected by the sentence of condemnation was not, and could not be a party to it.

If the sentence condemning the Mary did not technically preclude the owners of the cargo from asserting in the Court of admiralty her American character, the weight of the evidence on that point is to be fairly estimated.

In support of her American character, the documentary evidence is complete and unequivocal; and corroborative testimony is calculated to strengthen a belief in the verity of the register. In support of her hostile character the omission of the owner to file his claim is chiefly relied on. The importance of this circumstance is not to be controverted. Its weight, however, is much diminished by the consideration that the case affords no reasonable ground for believing that the owner could have been restrained from making his claim by the apprehension of failing to support it. There is no testimony, and there is no reason to suspect that any testimony was attainable which could have successfully opposed the register. This consideration gives plausibility to the argument that the worthlessness of the vessel, the bottomry bond with which she was charged, the expectation that the condemnation would relieve him from that debt, might be the motives for not resisting that condemnation. It is possible, too, that in point of fact, he might not have actnal notice of the proceedings. This is not to be presumed, and is not to benefit the owner; but it is possible; and may be taken into the account in estimating the effect of this negligence on persons who are not culpable for it.

It has been said that the owners of the cargo, and that Nanning J. Visscher, who held the bottomry bond, ought to have filed a claim. But the interest under the bottomry bond could not have been asserted; nor had the owners of the cargo any right to the vessel. Had they known that they were to be, in any manner, affected by the character of the vessel, they might, and most probably would have exerted themselves to have brought forward Kennedy as a Claimant, or to have accounted for his silence; but in the District Court the president's instructions were unknown, and their effect unthought of. The owners of the cargo, therefore, neither troubled themselves about the vessel, nor attempted to account for the claim to her not being filed. When afterwards in this Court the bearing of those instructions was discovered, and further proof was directed; that direction did not extend to proof which might account for the failure of Kennedy to assert his title to the vessel. This may excuse the Claimants for not producing testimony to that point.

Upon the best consideration we have able to bestow upon the subject, the Court is of opinion that the Mary, in this claim, must be deemed to have been the property of an American citizen.

2. Did she sail from a British port in consequence of the alleged repeal of the British orders in council?

That the voyage in its inception was produced by the opinion that the repeal of the British orders in council would terminate the differences between the two nations, is too clear for controversy. Had the Mary proceeded directly from Bristol to her port of destination in the United States, the counsel for the captors would not contend that it was not a voyage described by the instructions of the 28th of August. But the delay in the port of Waterford, it is said, has broken the continuity of the voyage, and in deciding on its character, the departure from Waterford, not the departure from Bristol, must be considered as its commencement, It is not denied that, in a commercial sense, this is one continued voyage, to take its date at the departure of the Mary from Bristol. But it is urged that where the rights of war intervene, a different construction must take place.

The Court does not accede to the correctness of this distinction.

The Mary was forced into Waterford by irresistible necessity, and was detained there by the operation of causes she could not control. Had her departure been from a neutral port, and she had been thus forced, during the voyage, into a hostile port, would it be alleged that she had incurred the liabilities of a vessel sailing from a port of the enemy? It is believed that this allegation could not be sustained, and that it would not be made. But as between the captors and the captured in this case, the voyage was, in its commencement, as innocent as if made from a friendly port. The detention at Waterford, then, can no more affect the character of the voyage in the one case than in the other.

But it is said that the owners of the cargo ought to have applied to the American government for a license to bring it into the United States.

So far as respects the captors, there could be no necessity for a license, since the vessel was already protected from them by the orders of the president under which they sailed; and for any other purpose a license was unnecessary, provided the importation, if the voyage had been immediate and direct from Bristol, could be justified.

If a cargo be innocently put on board in an enemy country, if at that time it be lawful to import it into the United States, the importation cannot be rendered unlawful by a detention occasioned, in the course of the voyage, either by the perils of the sea, or the act of the enemy, unless this effect be produced by some positive act of the legislature.

There is no such act.

It has been contended that the act for the remission of fines, penalties and forfeitures in certain cases, passed on the 2d of January, 1813 controls the instructions given by the president on the 28th of August, 1812, and limits the operation of those instructions to the specific cases described by congress; and as that act protects only those importations which were made previous to its passage, it has been argued that the president's instructions can go no further.

Independent of the war, all British merchandize was excluded from the ports of the United States by a system of policy supposed to have been founded on the British orders in council.

The secretary of the treasury had power to remit forfeitures incurred under these laws. When the orders in council were repealed, large shipments were made of British merchandize by American merchants in the full confidence that the American restrictive system would fall with the orders which produced it. This opinion and the proceedings in consequence of it, were thought excusable both by the executive and legislative departments of government. The president instructed the cruizers of the United States not to molest vessels of this description, 'but on the contrary, to give aid and assistance to the same; in order that such vessels and their cargoes may be dealt with on their arrival, as may be decided by the competent authorities.'

These instructions act solely on the rights of war, and regulate the conduct of the public and private armed vessels of the United States.

The legislature passed an act on the 2d of January 1813, taking away the discretion of the secretary of the treasury, and directing him absolutely to remit all penalties and forfeitures incurred by violating the non-intercourse laws, in all cases of importation made before the passage of the act, in American vessels, provided the goods were the property of citizens of the United States, and the vessels departed from any port of the United Kingdom of Great Britain and Ireland between the 23d day of June and the 15th of September then preceding.

This act does not contemplate the conduct of captors, or the rights of war. Its sole object is to remit certain penalties already incurred by a violation of municipal law. The legislature does not appear to have had in view the instructions given by the president to the armed vessels of the United States, much less to have intended to control those instructions.

But, in effecting these different objects, the executive and the legislature were impelled by the same motive–the peculiar hardship of exposing the citizens of the United States in such a case to the penalties either of war, or of municipal law. The one intended to protect from capture, the other from forfeiture, property which had been shipped in the reasonable confidence that peace and commercial intercourse between the two countries were the fruits of the repeal of the British orders in council. The president recognized the principle, but left the time within which it should operate, to be decided by the armed vessels and by the Courts, according to the circumstances of each case. The legislature prescribed certain limits within which it should operate. This Court, in construing the less explicit instructions of the president, with respect to the departure of a vessel from a British port, has respected the more explicit language of the legislature on the same subject. But the instructions of the president relate only to the departure of the vessel. They do not extend to the time of its arrival. In this respect there is nothing to be explained. Consequently the act of congress can furnish no aid in their construction. That the instructions were intended to protect from capture all vessels which had sailed in that confidence which was inspired by the repeal of the British orders in council, however the voyage might be protracted, is apparent from their language, and from the fact that they continued to be delivered to the armed vessels of the United States after the passage of the act of the 2d of January, 1813.

It is the unanimous opinion of the Court that the Mary was, at the time of her capture, protected by the instructions under which the captor sailed.

This opinion renders all inquiry into the character of the cargo unnecessary.

The counsel for the captors have claimed their costs and expenses, on the ground that there was probable cause of capture.

This claim is sustained by the Court. Further proof has been required, and the lateness of the period at which the Mary was found on the ocean, justified a suspicion that her case was not one to which the instructions of the president extended.

The sentence of the Circuit Court condemning the cargo of the Mary is reversed, and the cause is remanded to that Court with directions to dismiss the libel so far as respects the cargo, and to restore the same to the Claimants, and to allow the captors their reasonable costs and expenses.


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