Thompson, Ch. J.
delivered the opinion of the court.
The first question that arises is, whether this shipment, was not made contrary to the non-intercourse act, so that the goods were thereby forfeited, and the plaintiff’s title gone. If the non-intercourse law was in full force and operation, at the time of the shipment, I do not see why the principles which governed the case of Fontaine v. The Phœnix Insurance Company, (11 Johns. Rep. 293.) would not apply. The forfeiture was incurred by the act of putting the goods on board, with intent to import the same into the [34]*34United States; and, according to the principle adopted iti that case, the owner loses his right to the property, immediately on the commission of the act which produces the forfeiture. There is, however, a distinction between the two cases. Here the circumstances may warrant the conclusion, that the shipment was made, under an impression and belief, that the repeal of the orders in council would "terminate the differences between the two nations, and that • the non-intercourse act would not he enforced. And the subsequent act of the 2d of January, 1813, shows the reasonableness of such opinion, by remitting the forfeiture, in cases where the shipment was made under such belief. But it has been decided, in the supreme court of the United States,- that the declaration of war virtually repealed and.annulled the non-intercourse act, as between us and Great Britain. In the case of the Sally, (8 Cranch, 384.) the court say, the municipal forfeiture, under the non-intercourse act, was absorbed in the more general operation of the law of war. The property of an enemy seems hardly to be within the purview of mere municipal regulations, but is confiscable under the jus gentium. If, by the declaration of "war, on the 18th of June, 1812, the non-intercourse act ■ ceased to he in force, there was nothing making it unlawful for the plaintiffs to import the goods in question, except the existence of the war itself. The question is then presented, as to the right óf an American citizen, at the breaking out of ■ war, to withdraw his goods from the enemy’s country. ' Whether these goods were liable to British capture, is not the question before us. This branch of the defence is placed on the ground, that it was an illegal act, on the part of the plaintiffs, to withdraw these goods; and that, therefore, a court of justice will not enforce any contract, growing out of such illegal conduct. That all trading with an enemy is illegal, is a general and well settled rule. The ■principle is recognised and sanctioned, as well by the:com■morilaw, as by the maritime codes of all the European nations. (8 Term Rep. 554.) It is a wise and salutary rule ; but it -would require the most direct and controling authority, to satisfy my mind, that the mere act of withdrawing goods " frcen the enemy’s country, at the breaking out of a war, [35]*35comes within the reason or policy of the rule; and no case has fallen under my observation, that has pressed the principle thus far. Several cases, in the supreme court of the the United States, have been referred to, as containing that doctrine; but, on examination, they will not be found to support it. The case of the Rapid, (8 Cranch, 155.) has been relied on, as one of the strongest. But that case was. essentially different from the present, and decided upon a very distinct principle. Harrison, the claimant, who was an American citizen, had purchased a quantity of English goods, before the declaration of war, and deposited them on a small island belonging to the English, near the line between the United States and Nova Scotia ; and after the declaration of war, he sent a vessel, licensed and enrolled for thecocf fishery, and brought the goods away, which, on their return, were captured by an American privateer, and condemned, in the circuit court of Massachusetts, for trading with the enemy. On appeal, this sentence was affirmed. Judge Johnson, in delivering the opinion of the court, expressly waives giving any opinion upon the point now under consideration, although in very strong and emphatic language, he interdicts all intercourse with the enemy. In a state of war, he says, nation is known to nation only by their armed exterior, each threatening the other with conquest or annihilation. The individuals, who compose the belligerent states, exist, as to each other, in a state of utter occlusion. In war, every individual of one nation must acknowledge every individual of the other nation as his own enemy. Trading, says he, does not consist in negotiation, or contract, but the object, policy, and spirit of the rule is, to cut off all communication, or actual locomotive intercourse, between individuals of the belligerent states. Contract has no connection with the offence. Intercourse, in~ consistent with actual hostility, is the offence against which the operation of the rule is directed. But, after thus narrowing all intercourse, he says, whether on the breaking out of a war, the citizen has a right to remove to his own country, with his property, is not the question before the court. The claimant had no right to leave the United States, for the purpose of bringing hqme his property from an ene[36]*36my’s country. This was the point on which the decision (urne5e So, again, in the case of the St. Lawrence, (8 Cranch, 434.) the court say they do not mean to decide on the right of an American citizen, having funds in England, tb withdraw them, after a declaration of war, or as to the latitude which he may be allowed in the exercise of such a right, if it exists. That Judge Story did not mean to be understood as deciding this question, in the case of the Rapid, is evident from what fell from him in the casé of the St. Lawrence, when again before the court; (9 Cranch, 121.) he says, that it is not the intention of the court to express any opinion, as to the right of an American citizen, on the breaking out of hostilities, to withdraw his property, purchased before the war, from an enemy’s country. Admitting such a right to exist, it should be éxercised with due diligence, and within a reasonable time after the knowledge of hostilities.
. Thus it will be seen, that this question never has been decided, in the supreme court of the United States. And, from the guarded and cautious manner in which' that court has reserved itself, upon this particular question, there is reason to conclude, that when it is distinctly presented, it will be considered as not coming within the policy of the rule, that renders all trading or intercourse with the enemy illegal.
In Hallett & Bowne v. Jenks, (3 Cranch, 219.) the question before the court, involved the inquiry, as to what circumstances might excuse a trading, without incurring the penalties of the non-intercourse act of 1798. Ch. J. Marshall, in delivering the opinion of the court, observes, that even if an actual and general war had existed between this country and France, and the plaintiff had been driven into a French port, a part of his cargo seized, and he had been permitted to sell the residue, and purchase a new cargo, it would not have been deemed such a traffick with the enemy, as would vitiate the policy upon such new cargo.
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Thompson, Ch. J.
delivered the opinion of the court.
The first question that arises is, whether this shipment, was not made contrary to the non-intercourse act, so that the goods were thereby forfeited, and the plaintiff’s title gone. If the non-intercourse law was in full force and operation, at the time of the shipment, I do not see why the principles which governed the case of Fontaine v. The Phœnix Insurance Company, (11 Johns. Rep. 293.) would not apply. The forfeiture was incurred by the act of putting the goods on board, with intent to import the same into the [34]*34United States; and, according to the principle adopted iti that case, the owner loses his right to the property, immediately on the commission of the act which produces the forfeiture. There is, however, a distinction between the two cases. Here the circumstances may warrant the conclusion, that the shipment was made, under an impression and belief, that the repeal of the orders in council would "terminate the differences between the two nations, and that • the non-intercourse act would not he enforced. And the subsequent act of the 2d of January, 1813, shows the reasonableness of such opinion, by remitting the forfeiture, in cases where the shipment was made under such belief. But it has been decided, in the supreme court of the United States,- that the declaration of war virtually repealed and.annulled the non-intercourse act, as between us and Great Britain. In the case of the Sally, (8 Cranch, 384.) the court say, the municipal forfeiture, under the non-intercourse act, was absorbed in the more general operation of the law of war. The property of an enemy seems hardly to be within the purview of mere municipal regulations, but is confiscable under the jus gentium. If, by the declaration of "war, on the 18th of June, 1812, the non-intercourse act ■ ceased to he in force, there was nothing making it unlawful for the plaintiffs to import the goods in question, except the existence of the war itself. The question is then presented, as to the right óf an American citizen, at the breaking out of ■ war, to withdraw his goods from the enemy’s country. ' Whether these goods were liable to British capture, is not the question before us. This branch of the defence is placed on the ground, that it was an illegal act, on the part of the plaintiffs, to withdraw these goods; and that, therefore, a court of justice will not enforce any contract, growing out of such illegal conduct. That all trading with an enemy is illegal, is a general and well settled rule. The ■principle is recognised and sanctioned, as well by the:com■morilaw, as by the maritime codes of all the European nations. (8 Term Rep. 554.) It is a wise and salutary rule ; but it -would require the most direct and controling authority, to satisfy my mind, that the mere act of withdrawing goods " frcen the enemy’s country, at the breaking out of a war, [35]*35comes within the reason or policy of the rule; and no case has fallen under my observation, that has pressed the principle thus far. Several cases, in the supreme court of the the United States, have been referred to, as containing that doctrine; but, on examination, they will not be found to support it. The case of the Rapid, (8 Cranch, 155.) has been relied on, as one of the strongest. But that case was. essentially different from the present, and decided upon a very distinct principle. Harrison, the claimant, who was an American citizen, had purchased a quantity of English goods, before the declaration of war, and deposited them on a small island belonging to the English, near the line between the United States and Nova Scotia ; and after the declaration of war, he sent a vessel, licensed and enrolled for thecocf fishery, and brought the goods away, which, on their return, were captured by an American privateer, and condemned, in the circuit court of Massachusetts, for trading with the enemy. On appeal, this sentence was affirmed. Judge Johnson, in delivering the opinion of the court, expressly waives giving any opinion upon the point now under consideration, although in very strong and emphatic language, he interdicts all intercourse with the enemy. In a state of war, he says, nation is known to nation only by their armed exterior, each threatening the other with conquest or annihilation. The individuals, who compose the belligerent states, exist, as to each other, in a state of utter occlusion. In war, every individual of one nation must acknowledge every individual of the other nation as his own enemy. Trading, says he, does not consist in negotiation, or contract, but the object, policy, and spirit of the rule is, to cut off all communication, or actual locomotive intercourse, between individuals of the belligerent states. Contract has no connection with the offence. Intercourse, in~ consistent with actual hostility, is the offence against which the operation of the rule is directed. But, after thus narrowing all intercourse, he says, whether on the breaking out of a war, the citizen has a right to remove to his own country, with his property, is not the question before the court. The claimant had no right to leave the United States, for the purpose of bringing hqme his property from an ene[36]*36my’s country. This was the point on which the decision (urne5e So, again, in the case of the St. Lawrence, (8 Cranch, 434.) the court say they do not mean to decide on the right of an American citizen, having funds in England, tb withdraw them, after a declaration of war, or as to the latitude which he may be allowed in the exercise of such a right, if it exists. That Judge Story did not mean to be understood as deciding this question, in the case of the Rapid, is evident from what fell from him in the casé of the St. Lawrence, when again before the court; (9 Cranch, 121.) he says, that it is not the intention of the court to express any opinion, as to the right of an American citizen, on the breaking out of hostilities, to withdraw his property, purchased before the war, from an enemy’s country. Admitting such a right to exist, it should be éxercised with due diligence, and within a reasonable time after the knowledge of hostilities.
. Thus it will be seen, that this question never has been decided, in the supreme court of the United States. And, from the guarded and cautious manner in which' that court has reserved itself, upon this particular question, there is reason to conclude, that when it is distinctly presented, it will be considered as not coming within the policy of the rule, that renders all trading or intercourse with the enemy illegal.
In Hallett & Bowne v. Jenks, (3 Cranch, 219.) the question before the court, involved the inquiry, as to what circumstances might excuse a trading, without incurring the penalties of the non-intercourse act of 1798. Ch. J. Marshall, in delivering the opinion of the court, observes, that even if an actual and general war had existed between this country and France, and the plaintiff had been driven into a French port, a part of his cargo seized, and he had been permitted to sell the residue, and purchase a new cargo, it would not have been deemed such a traffick with the enemy, as would vitiate the policy upon such new cargo. According to this opinion, an actual trading with the enemy may, under some circumstances, be deemed lawful. Independent, however, of this general question, the withdrawing of the goods in question, may very fairly be considered as falling [37]*37within the principle settled by the supreme court of the United States, in the case of the Thomas Gibbons. (8 Cranch, 421.) It was there held, that , a shipment made, even after a knowledge of the war, may well be deemed to have been made in consequence of the repeal of the orders in council, if made within so early a period, as would leave a reasonable presumption, that the knowledge of that repeal would induce a suspension of hostilities, on the part of the United States ; and that congress had acted upon that principle, by the act of the 2d of January, 1813, (ch. 149.) and fixed the time, (15 Sept. 1812.) before which shipments might be reasonably made, upon the faith of that presumption. The same doctrine is, again, recognised, and more liberally applied, in the case of the Mary. (9 Cranch, 147.) The shipment, in the case now before the court, was on the 21st of July, and before the declaration of war was known in England. From this view of the case, and the law applicable to it, we are satisfied, that withdrawing the goods, under such circumstances, could not be considered an illegal act.
The next inquiry is, whether any thing, afterwards, occurred, to exonerate the defendant from responsibility upon the bill of lading ; and we cannot perceive that there has. There can be no doubt, that the admiralty proceedings against the property at Mew-Providence, after the first release, were by the procurement of the agents of the defendant. The case states that the process was procured by Peter M'Gregor, who sailed on board the vessel from Liverpool, who was the nephew of the defendant, and represented himself as his agent, on the suggestion in his petition, that if the goods were brought into the United States, they would be seized as imported contrary to law, and would be lost to the owners and underwriters, \s ho were, as he alleged, British subjects. But, upon claim and answer, put in by the master, the petition was dismissed, and the vessel and cargo again liberated; and the ship being about to sail, she was again stopped by a British armed vessel, by the solicitation and procurement of the same Peter M‘Gregor, and one William Stewart, who was on board the ship, and proceeding to Mew-Orleans with her as the agent and consignee of the defendant, they giving the captain of the British, ship [38]*38an indemnity for such seizure. The ship and cargo were then libelled, and claims interposed, by different persons, for different parts of the cargo ; and the goods in question were claimed as the property of Maitland & Co. The claimants all alleged, that if the goods were transported to New Orleans, they would be seized and forfeited, as imported contrary to law; and, in support of such allegation, produced Mr. Gallatin’s letter of the 26th of August, 1812, giving instructions to the collectors on that, subject. A decree was then pronounced, ordering the goods to be given up to the claimants, and they were sold, and the proceeds disposed of as has been stated. There is no pretence, that the persons who represented themselves to be the agents of the defendant, and who acted as such, were not so in fact; and if so, he must be answerable for their acts. Nor is it pre. tended that the goods in question belonged to Maitland-h Co. All the representation on that subject was a mere cover to get hold of the property, which it was supposed would be seized and forfeited, if sent on to New- Orleans. The goods have,, therefore, been lost by the act of the defendant; for if they had gone on, and the non-intercourse act had been considered in force, there can be no doubt that, under the act of the 2d of January, 1813, the forfeiture would have been remitted ; for the shipment was made within the time limited by that act, and under circumstances bringing the case expressly within its provisions.
The only remaining question is, as to the rule of damages, by which the amount of the recovery is to be regulated. This, we think, ought to be the nett value of the goods at New-Orleans, the port of delivery. That was the rule adopted by this court, in the case of Watkinson v. Laughton. (8 Johns. Rep. 213.)
Whether interest ought to be allowed or not, depends, principally, upon the light in which the defendant’s conduct, or that of his agent’s, is viewed. The jury might have given interest, by way of damages; and the verdict being subject to the opinion of the court, we are substituted in the place of the jury. If there was any fraud, or gross misconduct attending the transaction, interest ought to be al[39]*39lowed. But we are inclined to think the conduct of the defendant’s agents ought not to he stamped with so odious a character. They appear to have acted under an imp ression, that the goods, if sent on to Nezo-Orleans, would inevitahly have been seized and forfeited, and entirely lost to the owners, and that what they did would promote their interest. So that, upon the whole, we think interest ought not to be allowed. The verdict must, accordingly, be reduced ; and the amount of damages liquidated according to the rule thus laid down.
Judgment for the plaintiffs.