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.
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 ...