The Mary and Susan .—Richardson

14 U.S. 46, 4 L. Ed. 32, 1 Wheat. 46, 1816 U.S. LEXIS 307

Opinion

Johnson, J.,

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 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. f

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 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, 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 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 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 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

•

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

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. 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.)